Emergent Biosolutions Inc.
As filed with the Securities and
Exchange Commission on November 12, 2008
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMERGENT BIOSOLUTIONS
INC.
(Exact name of registrant as
specified in its charter)
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Delaware
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14-1902018
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(State or other jurisdiction of incorporation or
organization)
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(I.R.S. Employer Identification Number)
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2273 Research Boulevard,
Suite 400
Rockville, Maryland
20850
(301) 795-1800
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Fuad El-Hibri
Chief Executive
Officer
Emergent BioSolutions
Inc.
2273 Research Boulevard,
Suite 400
Rockville, Maryland
20850
(301) 795-1800
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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David E. Redlick, Esq.
Brian A. Johnson, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
399 Park Avenue
New York, New York 10022
Telephone: (212) 230-8800
Telecopy: (212) 230-8888
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Denise Esposito, Esq.
Senior Vice President, Legal Affairs, General Counsel and
Secretary
Emergent BioSolutions Inc.
2273 Research Boulevard, Suite 400
Rockville, Maryland 20850
Telephone: (301) 795-1800
Telecopy: (301) 795-1899
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Approximate date of commencement of proposed sale to
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act,
check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large
accelerated
filer o
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Accelerated
filer þ
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered(1)
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Registered
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Price per Share
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Offering Price(2)(3)
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Fee(4)
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Primary Offering:
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Common Stock, $0.001 par value per share (including
associated preferred stock purchase rights)(5)(6)
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(7)
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(7)
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(7)
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(7)
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Preferred Stock, $0.001 par value per share
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(7)
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(7)
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(7)
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(7)
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Debt Securities
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(7)
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(7)
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(7)
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(7)
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Warrants
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(7)
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(7)
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(7)
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(7)
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Total for Primary Offering
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$100,000,000
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$3,930
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Secondary Offering:
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Common Stock, $0.001 par value per share (including
associated preferred stock purchase rights)(6)(8)
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1,180,638
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$16.94
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$20,000,008
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$787
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Total:
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$120,000,008
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$4,717
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(1)
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With respect to the primary
offering, there are being registered hereunder such
indeterminate number of shares of common stock, such
indeterminate number of shares of preferred stock, such
indeterminate principal amount of debt securities and such
indeterminate number of warrants to purchase common stock,
preferred stock or debt securities, as will have an aggregate
initial offering price not to exceed $100,000,000. If any debt
securities are issued in a primary offering at an original issue
discount, then the issue price, and not the principal amount, of
such debt securities shall be used for purposes of calculating
the aggregate initial offering price of all securities issued.
Any securities registered hereunder in a primary offering may be
sold separately or as units with other securities registered
hereunder. The securities registered in a primary offering also
include such indeterminate amounts and numbers of shares of
common stock and numbers of shares of preferred stock, and
principal amounts of debt securities, as may be issued upon
conversion of or exchange for preferred stock or debt securities
that provide for conversion or exchange, upon exercise of
warrants or pursuant to the anti-dilution provisions of any such
securities. In addition to the primary offering, there are being
registered hereunder up to 1,180,638 shares of common stock
that the selling stockholders may sell from time to time.
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(2)
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In U.S. dollars or the equivalent
thereof in any other currency, currency unit or units, or
composite currency or currencies.
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(3)
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With respect to the primary
offering, the proposed maximum per unit and aggregate offering
prices per class of security will be determined from time to
time by the registrant in connection with the issuance by the
registrant of the securities registered under this Registration
Statement.
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(4)
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Estimated solely for purposes of
determining the registration fee pursuant to Rule 457(o)
under the Securities Act.
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(5)
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With respect to the primary
offering, the aggregate amount of common stock registered under
this Registration Statement is limited, with respect to at the
market offerings, to that which is permissible under
Rule 415(a)(4) under the Securities Act.
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(6)
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Each share of common stock includes
one series A junior participating preferred stock purchase
right. The value attributable to the series A junior
participating preferred stock purchase rights, if any, will be
reflected in the offering price of the common stock.
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(7)
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Not required to be included in
accordance with General Instruction II.D. of
Form S-3.
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(8)
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Estimated solely for purposes of
determining the registration fee pursuant to Rule 457(c)
under the Securities Act, based on the average high and low
prices per share of the common stock as reported on the New York
Stock Exchange on November 6, 2008.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT
TO COMPLETION, DATED NOVEMBER 12, 2008
EMERGENT
BIOSOLUTIONS INC.
$100,000,000
of
Common Stock
Preferred Stock
Debt Securities
Warrants
1,180,638 Shares
of
Common Stock
Offered by Selling Stockholders
We may from time to time offer and sell in the primary offering
up to $100,000,000 aggregate dollar amount of common stock,
preferred stock, debt securities and warrants. We will specify
in the accompanying prospectus supplement the terms of the
securities to be offered and sold. We may sell these securities
to or through underwriters or dealers and also to other
purchasers or through agents. We will set forth the names of any
underwriters, dealers or agents in the accompanying prospectus
supplement.
In addition to the primary offering of securities described
above, the selling stockholders identified in this prospectus
may from time to time sell up to 1,180,638 shares of common
stock. We will not receive any proceeds from the sale, if any,
of common stock by the selling stockholders.
Our common stock is listed on the New York Stock Exchange under
the symbol EBS.
Investing in our securities
involves a high degree of risk. See Risk Factors on
page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus may not be used to consummate sales of
securities unless, to the extent required by applicable law, it
is accompanied by a prospectus supplement.
Prospectus
dated ,
2008.
TABLE OF
CONTENTS
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Page
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You should rely only on the information contained or
incorporated by reference in this prospectus, any accompanying
prospectus supplement or any free writing prospectus
we may authorize to be delivered to you. We have not authorized
anyone to provide you with different information. If anyone
provides you with different or inconsistent information, you
should not rely on it. You should assume that the information
appearing in this prospectus, any prospectus supplement and the
documents incorporated by reference herein and therein are
accurate only as of their respective dates. Our business,
financial condition, results of operations and prospects may
have changed since those dates. Neither this prospectus nor any
accompanying prospectus supplement shall constitute an offer or
solicitation by anyone in any jurisdiction in which such offer
or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make such offer or
solicitation.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
using a shelf registration process. Under this shelf
registration process, we may from time to time sell common
stock, preferred stock, debt securities or warrants, or any
combination of these securities, in one or more primary
offerings up to a total dollar amount of $100,000,000. In
addition to the primary offering of securities, the selling
stockholders identified in this prospectus may from time to time
sell up to 1,180,638 shares of our common stock in one or
more secondary offerings. We have provided to you in this
prospectus a general description of the securities we and the
selling stockholders may offer. Each time we or the selling
stockholders sell securities, we will, to the extent required by
law, provide a prospectus supplement that will contain specific
information about the terms of the offering. We may also add,
update or change in any accompanying prospectus supplement or
any free writing prospectus we may authorize to be delivered to
you any of the information contained in this prospectus. To the
extent there is a conflict between the information contained in
this prospectus and the prospectus supplement, you should rely
on the information in the prospectus supplement, provided that
if any statement in one of these documents is inconsistent with
a statement in another document having a later date
for example, a document incorporated by reference in this
prospectus or any prospectus supplement the
statement in the document having the later date modifies or
supersedes the earlier statement. This prospectus, together with
any accompanying prospectus supplement and any free writing
prospectus we may authorize to be delivered to you, includes all
material information relating to the primary offering of our
securities and the secondary offering of our common stock by the
selling stockholders.
As permitted by the rules and regulations of the SEC, the
registration statement, of which this prospectus forms a part,
includes additional information not contained in this
prospectus. You may read the registration statement and the
other reports we file with the SEC at the SECs web site or
at the SECs offices described below under the heading
Where You Can Find Additional Information.
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SUMMARY
Emergent
BioSolutions Inc.
We are a biopharmaceutical company focused on the development,
manufacture and commercialization of immune related biologics
products, consisting of vaccines and therapeutics that assist
the bodys immune system to prevent or treat disease. We
develop vaccines and therapeutics for use against biological
agents that are potential weapons of bioterrorism and biowarfare
and against infectious diseases that have resulted in
significant unmet or underserved public health needs. We
manufacture and market
BioThrax®
(Anthrax Vaccine Adsorbed), the only vaccine licensed by the
U.S. Food and Drug Administration for the prevention of
anthrax infection. We use internally generated cash flows from
the sale of BioThrax to substantially fund the development of
our product pipeline. We also seek to obtain marketed products
and development stage product candidates through acquisitions
and licensing arrangements with third parties. For financial
reporting purposes, we operate in two business segments,
biodefense and commercial.
Our biodefense segment focuses on vaccines and therapeutics for
use against biological agents that are potential weapons of
bioterrorism or biowarfare. Our product candidates in this
segment are focused on two specific biological agents: anthrax
and botulinum. Within our anthrax product portfolio, in addition
to our marketed vaccine, BioThrax, we are developing a
recombinant protective antigen anthrax vaccine acquired in May
2008 from VaxGen, Inc., next generation anthrax vaccines,
an anthrax immune globulin therapeutic and a recombinant anthrax
monoclonal antibody therapeutic. Within our botulinum product
portfolio, we are developing a recombinant botulinum vaccine.
Our commercial segment focuses on vaccines and therapeutics for
use against infectious diseases and other medical conditions
that have resulted in significant unmet or underserved public
health needs. Our product candidates in this segment include a
typhoid vaccine, a tuberculosis vaccine, a hepatitis B
therapeutic vaccine, a chlamydia vaccine and a group B
streptococcus vaccine.
Corporate
Information
We were incorporated as BioPort Corporation under the laws of
Michigan in May 1998. In June 2004, we completed a corporate
reorganization in which Emergent BioSolutions Inc., a Delaware
corporation formed in December 2003, issued shares of
class A common stock to stockholders of BioPort in exchange
for an equal number of outstanding shares of common stock of
BioPort. As a result of this reorganization, BioPort became a
wholly owned subsidiary of Emergent. We subsequently renamed
BioPort as Emergent BioDefense Operations Lansing Inc.
Our principal executive offices are located at 2273 Research
Boulevard, Suite 400, Rockville, Maryland 20850. Our
telephone number is
(301) 795-1800.
Our website address is www.emergentbiosolutions.com. We have
included our website address as an inactive textual reference
only. The information contained on, or that can be accessed
through, our website is not a part of this prospectus.
In this prospectus, unless otherwise stated or the context
otherwise requires, references to Emergent,
we, us and our and similar
references refer to Emergent BioSolutions Inc.
BioThrax®
,
MVAtortm
and
spi-VECtm
are our trademarks. Each of the other trademarks, trade names or
service marks appearing or incorporated by reference in this
prospectus or any applicable prospectus supplement are the
property of their respective owners.
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RISK
FACTORS
An investment in our securities involves significant risks. You
should carefully consider the risks and uncertainties described
in this prospectus and any prospectus supplement, including the
risk factors set forth in the documents and reports filed with
the SEC that are incorporated by reference herein, such as the
risk factors under the heading Risk Factors in our
Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2008 on file with the
SEC, before you make an investment decision pursuant to this
prospectus and any accompanying prospectus supplement.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our business
operations.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents
incorporated by reference herein contain forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, that involve substantial risks and
uncertainties. All statements, other than statements of
historical fact, including statements regarding our strategy,
future operations, future financial position, future revenues,
projected costs, prospects, plans and objectives of management,
are forward-looking statements. The words
anticipate, believe,
estimate, expect, intend,
may, plan, predict,
project, will and would and
similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words.
We may not actually achieve the plans, intentions or
expectations disclosed in our forward-looking statements, and
you should not place undue reliance on our forward-looking
statements. Actual results or events could differ materially
from the plans, intentions and expectations disclosed in the
forward-looking statements we make. We have included important
factors in the cautionary statements included and incorporated
by reference in this prospectus that we believe could cause
actual results or events to differ materially from the
forward-looking statements that we make. See Risk
Factors for more information. You should consider these
factors and other cautionary statements made in this prospectus
and in the documents we incorporate by reference as being
applicable to all related forward-looking statements wherever
they appear in the prospectus and in the documents incorporated
by reference. Unless specifically indicated, our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or
investments we may make. We do not assume any obligation to
update any forward-looking statements.
USE OF
PROCEEDS
Unless otherwise provided in the applicable prospectus
supplement, we currently intend to use the net proceeds from the
sale of the securities from primary offerings under this
prospectus for general corporate purposes, including development
of our product candidates, the acquisition or in-license of
technologies, products or businesses, working capital and
capital expenditures. We may set forth additional information on
the use of proceeds from the sale of securities we offer under
this prospectus in a prospectus supplement relating to the
specific primary offering. We have not determined the amount of
net proceeds to be used specifically for the foregoing purposes.
As a result, our management will have broad discretion in the
allocation of the net proceeds. Pending use of the net proceeds,
we intend to invest the proceeds in a variety of capital
preservation instruments, including short-term,
investment-grade, interest-bearing instruments.
We will not receive any proceeds from the sale of shares of
common stock in a secondary offering by the selling
stockholders. The selling stockholders will pay any underwriting
or broker discounts and commissions and expenses incurred by the
selling stockholders for brokerage, accounting, tax or legal
services or any other expenses incurred by the selling
stockholders in disposing of the shares of common stock in a
secondary offering. We will bear all other costs, fees and
expenses incurred in effecting the registration of the
securities covered by this prospectus, including, without
limitation, all registration and filing fees and fees and
expenses of our counsel and our accountants.
2
RATIO OF
EARNINGS TO FIXED CHARGES
Our consolidated ratio of earnings to fixed charges for each of
the periods indicated is as follows:
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Nine Months Ended
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Year Ended December 31,
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September 30, 2008
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2007
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2006
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2005
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2004
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2003
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Ratio of earnings to fixed charges
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13.5
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11.1
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19.6
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28.2
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69.6
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20.5
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For purposes of calculating the ratios in the table above:
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earnings consist of pretax income from continuing operations
plus fixed charges and amortization of capitalized interest
minus interest capitalized; and
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fixed charges consist of interest on debt expensed and
capitalized and amortization of deferred debt issuance costs.
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The ratios presented in the table above are based solely on
historical financial information, and no pro forma adjustments
have been made thereto. As of the date of this prospectus, we
have no shares of preferred stock outstanding and have not
declared or paid any preferred stock dividends for the periods
set forth above.
DESCRIPTION
OF SECURITIES
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize
the material terms and provisions of the various types of
securities that we or the selling stockholders may offer. We
will describe in the applicable prospectus supplement relating
to any securities the particular terms of the securities offered
by that prospectus supplement. If we so indicate in the
applicable prospectus supplement, the terms of the securities
may differ from the terms we have summarized below. We will also
include in the prospectus supplement information, where
applicable, about material U.S. federal income tax
considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more primary offerings,
common stock, preferred stock, debt securities and warrants to
purchase any such securities. The selling stockholders may from
time to time offer our common stock for resale in one or more
secondary offerings.
In this prospectus, we refer to the common stock, preferred
stock, debt securities and warrants to be sold by us in a
primary offering collectively as securities. The
total dollar amount of all securities that we may issue under
this prospectus, not including the value of the
1,180,638 shares of common stock that may be offered for
resale by the selling stockholders, will not exceed $100,000,000.
If we issue debt securities at a discount from their original
stated principal amount, then we will use the issue price, and
not the principal amount, of such debt securities for purposes
of calculating the total dollar amount of all securities issued
under this prospectus.
This prospectus may not be used to consummate a sale of
securities unless it is accompanied by a prospectus supplement.
DESCRIPTION
OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred
stock, together with any additional information we include in
any applicable prospectus supplements, summarizes the material
terms and provisions of our common stock and the preferred stock
that we may offer in primary offerings under this prospectus.
For the complete terms of our common stock and preferred stock,
please refer to our certificate of incorporation and by-laws,
which are exhibits to the registration statement that includes
this prospectus. The terms of our common stock and preferred
stock may also be affected by Delaware law.
3
Authorized
Capital Stock
Under our certificate of incorporation, our authorized capital
stock consists of 100,000,000 shares of common stock,
$0.001 par value per share, and 15,000,000 shares of
preferred stock, $0.001 par value per share, of which
100,000 shares have been designated as series A junior
participating preferred stock. As of October 31, 2008, we
had 29,921,107 shares of common stock outstanding and no
shares of preferred stock outstanding. We will describe the
specific terms of any common stock or preferred stock we may
offer in more detail in a prospectus supplement relating to the
offering of shares of common stock or preferred stock. If we so
indicate in a prospectus supplement, the terms of any common
stock or preferred stock offered under that prospectus
supplement may differ from the terms described below.
Common
Stock
Voting Rights. The holders of our common stock
are entitled to one vote per share with respect to each matter
presented to our stockholders on which the holders of common
stock are entitled to vote and do not have cumulative voting
rights. An election of directors by our stockholders is
determined by a plurality of the votes cast by the stockholders
entitled to vote on the election.
Dividends. Holders of common stock are
entitled to receive proportionately any dividends as may be
declared by our board of directors, subject to any preferential
dividend rights of outstanding preferred stock.
Liquidation and Dissolution. In the event of
our liquidation or dissolution, the holders of common stock are
entitled to receive ratably all assets available for
distribution to stockholders after the payment of all debts and
other liabilities and subject to the prior rights of any
outstanding preferred stock.
Other Rights. Holders of common stock have no
preemptive, subscription, redemption or conversion rights. The
rights, preferences and privileges of holders of common stock
are subject to and may be adversely affected by the rights of
the holders of shares of any series of preferred stock that we
may designate and issue in the future.
Listing. Our common stock is listed on the New
York Stock Exchange under the symbol EBS. As of
October 31, 2008, the closing price per share of our common
stock on the New York Stock Exchange was $18.01, and we had
approximately 27 holders of record of our common stock.
Transfer Agent and Registrar. The transfer
agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Preferred
Stock
Under the terms of our certificate of incorporation, our board
of directors is authorized to issue shares of preferred stock in
one or more series without stockholder approval. Our board of
directors has the discretion to determine the rights,
preferences, privileges and restrictions, including voting
rights, dividend rights, conversion rights, redemption
privileges and liquidation preferences, of each series of
preferred stock. Authorizing our board of directors to issue
preferred stock and determine its rights and preferences has the
effect of eliminating delays associated with a stockholder vote
on specific issuances. Currently, we have no shares of preferred
stock outstanding. Our board of directors has authorized
100,000 shares of series A junior participating
preferred stock for issuance under our stockholder rights plan.
See Stockholder Rights Plan below.
If we decide to issue any preferred stock pursuant to this
prospectus, we will describe in a prospectus supplement the
terms of the preferred stock, including, if applicable, the
following:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date, and method of
calculation for dividends;
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whether dividends will be cumulative and, if cumulative, the
date from which dividends will accumulate;
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the relative ranking and preference of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up
our affairs;
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the procedures for any auction and remarketing;
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the provisions for a sinking fund;
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the provisions for redemption or repurchase and any restrictions
on our ability to exercise those redemption and repurchase
rights;
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the listing of the preferred stock on any securities exchange or
market;
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whether the preferred stock will be convertible into our common
stock and, if convertible, the conversion price, or how it will
be calculated, and the conversion period;
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whether the preferred stock will be exchangeable into debt
securities and, if exchangeable, the exchange price, or how it
will be calculated, and the exchange period;
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voting rights of the preferred stock;
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preemptive rights;
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restrictions on transfer, sale or other assignment;
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whether interests in the preferred stock will be represented by
depositary shares;
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a discussion of any material U.S. federal income tax
considerations applicable to the preferred stock;
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any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights if we
liquidate, dissolve or wind up our affairs; and
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any other specific terms, preferences, rights or limitations of,
or restrictions on, the preferred stock.
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The preferred stock could have other rights, including economic
rights that are senior to our common stock that could adversely
affect the market value of our common stock. The issuance of the
preferred stock may also have the effect of delaying, deferring
or preventing a change in control of us without any action by
the shareholders.
Stockholder
Rights Plan
We are party to a rights agreement pursuant to which we issue to
our stockholders one preferred stock purchase right for each
outstanding share of our common stock. Each right, when
exercisable, will entitle the registered holder to purchase from
us a unit consisting of one one-thousandth of a share of
series A junior participating preferred stock.
The following description is a summary of the material terms of
our stockholder rights plan. It does not restate these terms in
their entirety. This summary is qualified in its entirety by
reference to the rights agreement, which is an exhibit to the
registration statement that contains this prospectus. We urge
you to read the rights agreement because it, and not this
description, defines its terms and provisions.
Rights. Each share of common stock has
attached to it one right. Initially, the rights are not
exercisable and are attached to all certificates representing
outstanding shares of our common stock, and we will not
distribute separate rights certificates. The rights are
exercisable under limited circumstances specified in the rights
agreement when there has been a distribution of the rights and
the rights are no longer redeemable by us.
The rights will expire at the close of business on
November 14, 2016, unless we redeem or exchange them
earlier as described below.
Prior to the Rights Distribution Date. Prior
to the rights distribution date:
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the rights are evidenced by our common stock certificates and
will be transferred with and only with such common stock
certificates; and
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the surrender for transfer of any certificates of our common
stock will also constitute the transfer of the rights associated
with our common stock represented by such certificate.
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Rights Distribution Date. The rights will
separate from our common stock, and a rights distribution date
will occur, upon the earlier of the following events:
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10 business days following the later of (1) a public
announcement that a person or group, other than an exempted
person, has acquired, or obtained the right to acquire
beneficial ownership of 15% or more of the outstanding shares of
our common stock or (2) the first date on which one of our
executive officers has actual knowledge of such an
event; and
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10 business days following the start of a tender offer or
exchange offer that would result in a person or group, other
than an exempted person, beneficially owning 15% or more of the
outstanding shares of our common stock.
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The distribution date may be deferred by our board of directors
and some inadvertent actions will not trigger the occurrence of
the rights distribution date. In addition, a rights distribution
date will not occur as a result of the ownership of our stock by
the following exempted persons:
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Fuad El-Hibri and his wife and any entity controlled by either
of them; and
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each other holder of our common stock immediately prior to our
initial public offering to the extent such persons
beneficial ownership exceeds 15% solely as a result of the fact
that the person is a party to certain voting agreements in place
at the time of our initial public offering.
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As soon as practicable after the rights distribution date,
separate rights certificates will be mailed to the holders of
record of our common stock as of the close of business on the
rights distribution date. From and after the rights distribution
date, the separate rights certificates alone will represent the
rights. All shares of our common stock issued prior to the
rights distribution date will be issued with rights. Shares of
our common stock issued after the rights distribution date in
connection with specified employee benefit plans or upon
conversion of specified securities will be issued with rights.
Except as otherwise determined by our board of directors, no
other shares of our common stock issued after the rights
distribution date will be issued with rights.
Flip-in Event. If a person or group, other
than an exempted person, becomes the beneficial owner of 15% or
more of the outstanding shares of our common stock, except as
described below, each holder of a right will thereafter have the
right to receive, upon exercise, a number of shares of our
common stock, or, in some circumstances, cash, property or other
securities of ours, which equals the exercise price of the right
divided by one-half of the current market price of our common
stock on the date the acquisition occurs. However, following the
acquisition:
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rights will not be exercisable until the rights are no longer
redeemable by us as set forth below; and
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all rights that are, or were, under the circumstances specified
in the rights agreement, beneficially owned by any acquiring
person will be null and void.
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The event set forth in this paragraph is referred to as a
flip-in event. A flip-in event would not occur if there is an
offer for all of our outstanding shares of common stock that at
least 75% of our board of directors determines is fair to our
stockholders and in their best interests.
Flip-over Event. If at any time after a person
or group, other than an exempted person, has become the
beneficial owner of 15% or more of the outstanding shares of our
common stock:
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we are acquired in a merger or other business combination
transaction in which we are not the surviving corporation;
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we are the surviving entity in a merger of other business
combination transaction but our common stock is changed or
exchanged for stock or securities of any other person or for
cash or any other property; or
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more than 50% of our assets or earning power is sold or
transferred,
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then each holder of a right, except rights which previously have
been voided as set forth above, shall thereafter have the right
to receive, upon exercise, that number of shares of common stock
of the acquiring company which equals the exercise price of the
right divided by one-half of the current market price of that
companys common stock at the date of the occurrence of the
event. The event described in this paragraph is referred to as a
flip-over event. A flip-over event does not arise if the merger
or other transaction follows an offer for all of our outstanding
shares of common stock that at least 75% of our board of
directors determines is fair to our stockholders and in their
best interests.
Exchange of Rights. At any time after a
flip-in event, when no person owns a majority of our common
stock, our board of directors may exchange the rights, other
than rights owned by the acquiring person that have become void,
in whole or in part, at an exchange ratio of one share of our
common stock, or one one-thousandth of a share of series A
junior participating preferred stock, or of a share of a class
or series of preferred stock having equivalent rights,
preferences and privileges, per right.
Adjustments. The purchase price of the rights,
and the number of securities purchasable, are subject to
adjustment from time to time to prevent dilution. The number of
rights associated with each share of common stock is also
subject to adjustment in the event of stock splits,
subdivisions, consolidations or combinations of our common stock
that occur prior to the rights distribution date.
Series A Junior Participating Preferred
Stock. Series A junior participating
preferred stock purchasable upon exercise of the rights will not
be redeemable. Each share of series A junior participating
preferred stock will be entitled to receive when, as and if
declared by our board of directors, a minimum preferential
quarterly dividend payment of $10 per share or, if greater, an
aggregate dividend of 1,000 times the dividend declared per
share of our common stock. In the event of liquidation, the
holders of the series A junior participating preferred
stock will be entitled to a minimum preferential liquidation
payment of $1,000 per share, plus accrued and unpaid dividends,
and will be entitled to an aggregate payment of 1,000 times the
payment made per share of our common stock. Each share of
series A junior participating preferred stock will have
1,000 votes, voting together with our common stock. In the event
of any merger, consolidation or other transaction in which our
common stock is changed or exchanged, each share of
series A junior participating preferred stock will be
entitled to receive 1,000 times the amount received per share of
our common stock. These rights are protected by customary
antidilution provisions.
Because of the nature of the series A junior participating
preferred stocks dividend, liquidation and voting rights,
the value of one one-thousandth of a share of series A
junior participating preferred stock purchasable upon exercise
of each right should approximate the value of one share of
common stock.
Redemption of Rights. At any time until ten
business days following the date of a public announcement that a
person or group, other than an exempted person, has acquired or
obtained the right to acquire beneficial ownership of 15% or
more of the outstanding shares of our common stock, or such
later date upon which one of our executive officers first has
actual knowledge of such event or such later date as our board
of directors may determine, we may redeem the rights in whole,
but not in part, at a price of $0.001 per right, payable in cash
or stock. Immediately upon the redemption of the rights or such
earlier time as established by our board of directors, the
rights will terminate and the only right of the holders of
rights will be to receive the redemption price.
Status of Rights Holder and Tax Effects. Until
a right is exercised, the holder of the right, as such, will
have no rights as a stockholder of ours, including no right to
vote or to receive dividends. Although the distribution of the
rights should not be taxable to stockholders or to us,
stockholders may, depending upon the circumstances, recognize
taxable income in the event that the rights become exercisable
for our common stock, or other consideration, or for common
stock of the acquiring company as described above.
Boards Authority to Amend. Our board of
directors may amend any provision of the rights agreement, other
than the redemption price, prior to the date on which the rights
are no longer redeemable. Once the rights are no longer
redeemable, our boards authority to amend the rights
agreement is limited to correcting ambiguities or defective or
inconsistent provisions in a manner that does not adversely
affect the interest of holders of rights.
Effects of the Rights. The rights are intended
to protect our stockholders in the event of an unfair or
coercive offer to acquire our company and to provide our board
of directors with adequate time to evaluate unsolicited offers.
The rights may have anti-takeover effects. The rights will cause
substantial dilution to a person or group that
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attempts to acquire us without conditioning the offer on a
substantial number of rights being acquired. The rights,
however, should not affect any prospective offeror willing to
make an offer at a fair price and otherwise in the best
interests of us and our stockholders, as determined by our board
of directors. The rights should not interfere with any merger or
other business combination approved by our board of directors.
Anti-takeover
Effects of Delaware Law and our Certificate of Incorporation and
By-laws
Our certificate of incorporation and by-laws and Delaware law
contain provisions that could have the effect of delaying,
deferring or discouraging another party from acquiring control
of us. These provisions, which are summarized below, are
expected to discourage coercive takeover practices and
inadequate takeover bids. These provisions are also designed to
encourage persons seeking to acquire control of us to first
negotiate with our board of directors.
Immediately prior to the date of this prospectus, Fuad El-Hibri,
our chief executive officer and chairman of our board of
directors, was the beneficial owner of approximately 47% of our
outstanding common stock. As a result, Mr. El-Hibri has
significant influence over the election of the members of our
board of directors. The percentage ownership of our common stock
by Mr. El-Hibri following the offering and sale of our
securities under this prospectus will be summarized in the
prospectus supplement relating to such offering. In addition,
some of the provisions summarized below may further enhance
Mr. El-Hibris control of our corporate affairs for at
least the next several years, including control of our board of
directors. This control could discourage others from initiating
a potential merger, takeover or other change of control
transaction that other stockholders may view as beneficial.
Number of Directors. Subject to the rights of
holders of any series of preferred stock to elect directors, our
board of directors will establish the number of directors. Until
November 20, 2011, any change in the number of directors
will require the affirmative vote of at least 75% of the
directors then in office.
Staggered Board; Removal of Directors. Our
certificate of incorporation and our by-laws divide our
directors into three classes with staggered three-year terms.
Our directors may be removed from office only for cause and only
by the affirmative vote of holders of our capital stock
representing at least 75% of the voting power of all outstanding
stock entitled to vote.
Any vacancy on our board of directors, including a vacancy
resulting from an enlargement of our board of directors, may be
filled only by the affirmative vote of a majority of our
directors present at a meeting duly held at which a quorum is
present.
The classification of our board of directors and the limitations
on the removal of directors and filling of vacancies could make
it more difficult for a third party to acquire, or discourage a
third party from seeking to acquire, control of our company.
Appointment and Removal of Chairman of
Board. Until November 20, 2011, the
appointment and removal of the chairman of our board of
directors will require the affirmative vote of at least 75% of
our directors then in office. Mr. El-Hibri currently serves
as the chairman of our board of directors.
Stockholder Action by Written Consent; Special
Meetings. Our certificate of incorporation and
our by-laws provide that any action required or permitted to be
taken by our stockholders must be effected at a duly called
annual or special meeting of such holders and may not be
effected by any consent in writing by such holders. Our
certificate of incorporation and our by-laws also provide that,
except as otherwise required by law, special meetings of our
stockholders can only be called by our board of directors, our
chairman of the board or our president.
Advance Notice Requirements. Beginning
November 20, 2008, our by-laws establish an advance notice
procedure for stockholder proposals to be brought before an
annual meeting of stockholders, including proposed nominations
of persons for election to the board of directors. Following
November 20, 2008, stockholders at an annual meeting may
only consider proposals or nominations specified in the notice
of meeting or brought before the meeting by or at the direction
of the board of directors or by a stockholder of record on the
record date for the meeting, who is entitled to vote at the
meeting and who has delivered timely written notice in proper
form to our secretary of the stockholders intention to
bring such business before the meeting. These provisions could
have the
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effect of delaying until the next stockholder meeting
stockholder actions that are favored by the holders of a
majority of our outstanding voting securities.
Delaware Business Combination Statute. We are
subject to Section 203 of the General Corporation Law of
Delaware. Subject to certain exceptions, Section 203
prevents a publicly held Delaware corporation from engaging in a
business combination with any interested
stockholder for three years following the date that the
person became an interested stockholder, unless the interested
stockholder attained such status with the approval of our board
of directors or unless the business combination is approved in a
prescribed manner. A business combination includes,
among other things, a merger or consolidation involving us and
the interested stockholder and the sale of more than
10% of our assets. In general, an interested
stockholder is any entity or person beneficially owning
15% or more of our outstanding voting stock and any entity or
person affiliated with or controlling or controlled by such
entity or person.
Super-Majority Voting. The General Corporation
Law of Delaware provides generally that the affirmative vote of
a majority of the shares entitled to vote on any matter is
required to amend a corporations certificate of
incorporation or by-laws, unless a corporations
certificate of incorporation or by-laws, as the case may be,
requires a greater percentage. Until November 20, 2008, the
affirmative vote of holders of our capital stock representing a
majority of the voting power of all outstanding stock entitled
to vote is required to amend or repeal the provisions of our
certificate of incorporation described in this section entitled
Anti-takeover Effects of Delaware Law and our Certificate
of Incorporation and By-laws. After November 20,
2008, the affirmative vote of holders of our capital stock
representing at least 75% of the voting power of all outstanding
stock entitled to vote is required to amend or repeal these
provisions of our certificate of incorporation. Until
November 20, 2008, the affirmative vote of either at least
75% of the directors then in office or holders of our capital
stock representing a majority of the voting power of all
outstanding stock entitled to vote is required to amend or
repeal our by-laws. After November 20, 2008, the
affirmative vote of either a majority of the directors present
at a meeting of our board of directors or holders of our capital
stock representing at least 75% of the voting power of all
outstanding stock entitled to vote is required to amend or
repeal our by-laws.
Effects
of Authorized but Unissued Stock
We have shares of common stock and preferred stock available for
future issuance without stockholder approval, subject to any
limitations imposed by the listing standards of the New York
Stock Exchange. We may utilize these additional shares for a
variety of corporate purposes including for future public
offerings to raise additional capital or facilitate corporate
acquisitions or for payment as a dividend on our capital stock.
The existence of unissued and unreserved common stock and
preferred stock may enable our board of directors to issue
shares to persons friendly to current management or to issue
preferred stock with terms that could have the effect of making
it more difficult for a third party to acquire, or could
discourage a third party from seeking to acquire, a controlling
interest in our company by means of a merger, tender offer,
proxy contest or otherwise. In addition, if we issue preferred
stock, the issuance could adversely affect the voting power of
holders of common stock and the likelihood that such holders
will receive dividend payments and payments upon liquidation.
Limitation
of Liability and Indemnification of Officers and
Directors
Our certificate of incorporation contains provisions permitted
under the General Corporation Law of Delaware relating to the
liability of directors. The provisions eliminate a
directors liability for monetary damages for a breach of
fiduciary duty, except in circumstances involving wrongful acts,
such as the breach of a directors duty of loyalty or acts
or omissions that involve intentional misconduct or a knowing
violation of law. Further, our certificate of incorporation
contains provisions to indemnify our directors and officers to
the fullest extent permitted by the General Corporation Law of
Delaware.
Registration
Rights
BioPharm, L.L.C., Biovac, L.L.C., Intervac, L.L.C. and Intervac
Management, L.L.C. hold an aggregate of 13,665,308 shares
of our common stock as of October 31, 2008 and have the
right to require us to register these
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shares of common stock under the Securities Act under specified
circumstances, including any additional shares issued or
distributed by way of a dividend, stock split or other
distribution in respect of these shares.
Demand Registration Rights. Subject to
specified limitations, holders of these registrations rights may
require that we register all or part of our common stock subject
to the registration rights for sale under the Securities Act.
These holders may demand registration of our common stock so
long as the offering price to the public of the shares requested
to be registered is at least $25,000,000. We are required to
effect only one demand registration, subject to specified
exceptions.
Incidental Registration Rights. If we propose
to register any of our common stock under the Securities Act,
subject to specified exceptions, either for our own account or
for the account of other security holders, holders of
registration rights are entitled to notice of the registration
and to include shares of common stock subject to the
registration rights in the registered offering. The holders of
these registration rights have waived such rights in connection
with the filing of the registration statement, of which this
prospectus forms a part, including any offering under this
prospectus, in exchange for the inclusion in the registration
statement of 1,180,638 shares of common stock held by such
stockholders.
Limitations and Expenses. With specified
exceptions, the right to include shares in a registration is
subject to the right of underwriters for the offering to limit
the number of shares included in the offering. We are required
to pay one-half of all fees, costs and expenses of any demand
registration, other than underwriting discounts and commissions.
DESCRIPTION
OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplements,
summarizes the material terms and provisions of the debt
securities that we may offer in a primary offering under this
prospectus. While the terms we have summarized below will apply
generally to any future debt securities we may offer, we will
describe the particular terms of any debt securities that we may
offer in more detail in the applicable prospectus supplement. If
we so indicate in a prospectus supplement, the terms of any debt
securities we offer under that prospectus supplement may differ
from the terms we describe below.
We will issue senior notes under a senior indenture that we will
enter into with a trustee to be named in the senior indenture.
We will issue subordinated notes under a subordinated indenture
that we will enter into with a trustee to be named in the
subordinated indenture. We have filed forms of these documents
as exhibits to the registration statement, of which this
prospectus forms a part. We will describe changes to the
indentures in connection with an offering of debt securities in
a prospectus supplement. We use the term indentures
to refer to both the senior indenture and the subordinated
indenture. The indentures will be qualified under the
Trust Indenture Act of 1939, or the Trust Indenture
Act. We use the term trustee to refer to either the
trustee under the senior indenture or the trustee under the
subordinated indenture, as applicable.
The following summaries of material provisions of senior notes,
subordinated notes and the indentures are subject to, and
qualified in their entirety by reference to, the provisions of
the indenture applicable to a particular series of debt
securities. Except as we may otherwise indicate, the terms of
the senior indenture and the subordinated indenture are
identical.
General
If we decide to issue any senior notes or subordinated notes
pursuant to this prospectus, we will describe in a prospectus
supplement the terms of the series of notes, including the
following:
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the title of the notes;
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any limit on the amount that may be issued;
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whether or not we will issue the series of notes in global form,
the terms and who the depository will be;
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the maturity date;
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the annual interest rate, which may be fixed or variable, or the
method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for
determining such dates;
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whether or not the notes will be secured or unsecured, and the
terms of any secured debt;
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whether or not the notes will be senior or subordinated;
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the terms of the subordination of any series of subordinated
debt;
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the terms on which the notes may be convertible into or
exchangeable for common stock or other securities of ours,
including provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option and
provisions pursuant to which the number of shares of common
stock or other securities of ours that the holders of the series
of debt securities receive would be subject to adjustment;
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the place where payments will be payable;
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our right, if any, to defer payment of interest and the maximum
length of any such deferral period;
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the date, if any, after which, and the price at which, we may,
at our option, redeem the series of notes pursuant to any
optional redemption provisions;
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the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the holders option to
purchase, the series of notes;
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whether the indenture will restrict our ability to pay
dividends, or will require us to maintain any asset ratios or
reserves;
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whether we will be restricted from incurring any additional
indebtedness;
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a discussion of any material or special U.S. federal income
tax considerations;
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the denominations in which we will issue the series of notes, if
other than denominations of $1,000 and any integral multiple
thereof;
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the definition and consequences of events of default under the
indentures; and
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any other specific terms, preferences, rights or limitations of,
or restrictions on, the debt securities.
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Subordination
of Subordinated Notes
The subordinated notes will be unsecured and will be subordinate
and junior in priority of payment to certain indebtedness to
which we may be subject to the extent described in a prospectus
supplement. The subordinated indenture does not limit the amount
of subordinated notes that we may issue. It also does not limit
us from issuing any other secured or unsecured debt.
Form,
Exchange and Transfer
We will issue the notes of each series only in fully registered
form without coupons and, unless we otherwise specify in the
applicable prospectus supplement, in denominations of $1,000 and
any integral multiple thereof. The indentures provide that we
may issue notes of a series in temporary or permanent global
form and as book-entry securities that will be deposited with,
or on behalf of, The Depository Trust Company, New York,
New York, or DTC, or another depository named by us and
identified in a prospectus supplement with respect to that
series. See Legal Ownership of Securities for a
further description of the terms relating to any book-entry
securities.
At the option of the holder, subject to the terms of the
indentures and the limitations applicable to global securities
described in the applicable prospectus supplement, the holder of
the notes of any series can exchange the notes for other notes
of the same series, in any authorized denomination and of like
tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations
applicable to global securities set forth in the applicable
prospectus supplement, holders of the notes may present the
notes for exchange or for registration of
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transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security
registrar, at the office of the security registrar or at the
office of any transfer agent designated by us for this purpose.
Unless otherwise provided in the notes that the holder presents
for transfer or exchange, we will not require any payment for
any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the
security registrar, and any transfer agent in addition to the
security registrar, that we initially designate for any notes.
We may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in
each place of payment for the notes of each series.
If we elect to redeem the notes of any series, we will not be
required to:
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reissue, register the transfer of, or exchange any notes of that
series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption
of any notes that may be selected for redemption and ending at
the close of business on the day of the mailing; or
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register the transfer of or exchange any notes so selected for
redemption, in whole or in part, except the unredeemed portion
of any notes we are redeeming in part.
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Consolidation,
Merger or Sale
The indentures do not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of such assets must assume
all of our obligations under the indentures or the notes, as
appropriate.
Events of
Default Under the Indentures
The following are events of default under the indentures with
respect to any series of notes that we may issue:
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if we fail to pay interest when due and our failure continues
for 90 days and the time for payment has not been extended
or deferred;
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if we fail to pay the principal, or premium, if any, when due
and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant contained in
the notes or the indentures, other than a covenant specifically
relating to another series of notes, and our failure continues
for 90 days after we receive notice from the trustee or
holders of at least 25% in aggregate principal amount of the
outstanding notes of the applicable series; and
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if we experience specified events of bankruptcy, insolvency or
reorganization.
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If an event of default with respect to notes of any series
occurs and is continuing, the trustee or the holders of at least
25% in aggregate principal amount of the outstanding notes of
that series, by notice to us in writing, and to the trustee if
notice is given by such holders, may declare the unpaid
principal of, or premium, if any, on and accrued interest, if
any, on the notes due and payable immediately.
The holders of a majority in principal amount of the outstanding
notes of an affected series may waive any default or event of
default with respect to the series and its consequences, except
uncured defaults or events of default regarding payment of
principal, or premium, if any, or interest, unless we have cured
the default or event of default in accordance with the
indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indentures, if an event of default
under an indenture shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any
of the holders of the applicable series of notes, unless such
holders have offered the trustee reasonable indemnity. In such
event, the holders of a majority in principal amount of the
outstanding notes of any series will have the right to direct
the time, method and place of conducting any proceeding for any
remedy
12
available to the trustee, or exercising any trust or power
conferred on the trustee, with respect to the notes of that
series, provided that:
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the direction so given by the holder is not in conflict with any
law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the
trustee need not take any action that might involve it in
personal liability or might be unduly prejudicial to the holders
not involved in the proceeding.
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A holder of the notes of any series will only have the right to
institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies, if:
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the holder has given written notice to the trustee of a
continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and
such holders have offered reasonable indemnity to the trustee to
institute the proceeding as trustee; and
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the trustee does not institute the proceeding, and does not
receive from the holders of a majority in aggregate principal
amount of the outstanding notes of that series other conflicting
directions within 60 days after the notice, request and
offer.
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These limitations do not apply to a suit instituted by a holder
of notes if we default in the payment of the principal of, or
the premium, if any, or interest on, the notes.
We will periodically file statements with the trustee regarding
our compliance with specified covenants in the indentures.
Discharge
Each indenture provides that we can elect, under specified
circumstances, to be discharged from our obligations with
respect to one or more series of debt securities, except for
obligations to:
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register the transfer or exchange of debt securities of the
series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged, we must
deposit with the trustee money or government obligations
sufficient to pay all the principal of, any premium, if any, and
interest on, the debt securities of the series on the dates
payments are due.
Modification
of Indenture; Waiver
We and the trustee may change an indenture without the consent
of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the
indenture; or
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to change anything that does not materially adversely affect the
interests of any holder of notes or any series.
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In addition, under the indentures, we and the trustee may change
the rights of holders of a series of notes with the written
consent of the holders of at least a majority in aggregate
principal amount of the outstanding notes of each series that is
affected. However, we and the trustee may only make the
following changes with the consent of each holder of any
outstanding notes affected:
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extending the fixed maturity of the series of notes;
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13
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reducing the principal amount, the rate of interest or any
premium payable upon the redemption of any notes; or
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reducing the minimum percentage of notes, the holders of which
are required to consent to any amendment.
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Information
Concerning the Trustee
The trustee, other than during the occurrence and continuance of
an event of default under an indenture, undertakes to perform
only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an
indenture, the trustee must use the same degree of care and
skill as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers
given to it by the indentures at the request of any holder of
notes unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless we otherwise indicate in the applicable prospectus
supplement, we will make payment of the interest on any notes on
any interest payment date to the person in whose name the notes,
or one or more predecessor securities, are registered at the
close of business on the regular record date for the interest
payment.
We will pay principal of and any premium and interest on the
notes of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in
the applicable prospectus supplement, we will make interest
payments by check which we will mail to the holder. Unless we
otherwise indicate in a prospectus supplement, we will designate
the corporate trust office of the trustee in The City of New
York as our sole paying agent for payments with respect to notes
of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate
for the notes of a particular series. We will maintain a paying
agent in each place of payment for the notes of a particular
series.
All money we pay to a paying agent or the trustee for the
payment of the principal of or any premium or interest on any
notes which remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will
be repaid to us, and the holder of the security thereafter may
look only to us for payment thereof.
Governing
Law
The indentures and the notes will be governed by and construed
in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
DESCRIPTION
OF WARRANTS
The following description, together with the additional
information we may include in any applicable prospectus
supplements, summarizes the material terms and provisions of the
warrants that we may offer in a primary offering under this
prospectus and the related warrant agreements and warrant
certificates. While the terms summarized below will apply
generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in
the applicable prospectus supplement. If we so indicate in the
prospectus supplement, the terms of any warrants offered under
that prospectus supplement may differ from the terms described
below. Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by
reference as an exhibit to the registration statement that
includes this prospectus.
General
We may issue warrants for the purchase of common stock,
preferred stock or debt securities in one or more series. We may
issue warrants independently or together with common stock,
preferred stock and debt securities, and the warrants may be
attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates
that we will issue under a separate agreement. We may enter into
the warrant agreement with a warrant agent. We will indicate the
name and address and other
14
information regarding the warrant agent in the applicable
prospectus supplement relating to a particular series of
warrants.
If we decide to issue warrants pursuant to this prospectus, we
will specify in a prospectus supplement the terms of the series
of warrants, including, if applicable, the following:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each
such security or each principal amount of such security;
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the date on and after which the warrants and the related
securities will be separately transferable;
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in the case of warrants to purchase debt securities, the
principal amount of debt securities purchasable upon exercise of
one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon
exercise;
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in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of the
warrants and the price at which these shares may be purchased
upon such exercise;
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the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreement and the
warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants;
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the dates on which the right to exercise the warrants will
commence and expire;
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the manner in which the warrant agreement and warrants may be
modified;
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a discussion of any material U.S. income tax consequences
of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the
warrants; and
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any other specific terms, preferences, rights or limitations of
or restrictions on the warrants.
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Before exercising their warrants, holders of warrants will not
have any of the rights of holders of the securities purchasable
upon such exercise, including:
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in the case of warrants to purchase debt securities, the right
to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise voting
rights, if any.
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Exercise
of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the
exercise price that we describe in the applicable prospectus
supplement. Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 5:00 P.M. New York City
time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be
exercised together with specified information, and paying the
required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We
will set forth on the reverse
15
side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will
be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are
exercised, then we will issue a new warrant certificate for the
remaining amount of warrants. If we so indicate in the
applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Enforceability
of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the
applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any
warrant. A single bank or trust company may act as warrant agent
for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the
applicable warrant agreement or warrant, including any duty or
responsibility to initiate any proceedings at law or otherwise,
or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its
right to exercise, and receive the securities purchasable upon
exercise of, its warrants.
LEGAL
OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one
or more global securities. We describe global securities in
greater detail below. We refer to those persons who have
securities registered in their own names on the books that we or
any applicable trustee maintain for this purpose as the
holders of those securities. These persons are the
legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in
securities that are not registered in their own names, as
indirect holders of those securities. As we discuss
below, indirect holders are not legal holders, and investors in
securities issued in book-entry form or in street name will be
indirect holders.
Book-Entry
Holders
We may issue securities in book-entry form only, as we will
specify in the applicable prospectus supplement. This means
securities may be represented by one or more global securities
registered in the name of a financial institution that holds
them as depositary on behalf of other financial institutions
that participate in the depositarys book-entry system.
These participating institutions, which are referred to as
participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is
recognized as the holder of that security. Securities issued in
global form will be registered in the name of the depositary or
its nominee. Consequently, for securities issued in global form,
we will recognize only the depositary as the holder of the
securities, and we will make all payments on the securities to
the depositary. The depositary passes along the payments it
receives to its participants, which in turn pass the payments
along to their customers who are the beneficial owners. The
depositary and its participants do so under agreements they have
made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own
securities directly. Instead, they will own beneficial interests
in a global security, through a bank, broker or other financial
institution that participates in the depositarys
book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will
be indirect holders, and not holders, of the securities.
Street
Name Holders
We may terminate a global security or issue securities in
non-global form. In these cases, investors may choose to hold
their securities in their own names or in street
name. Securities held by an investor in street name would
be
16
registered in the name of a bank, broker or other financial
institution that the investor chooses, and the investor would
hold only a beneficial interest in those securities through an
account he or she maintains at that institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of
those securities, and we will make all payments on those
securities to them. These institutions pass along the payments
they receive to their customers who are the beneficial owners,
but only because they agree to do so in their customer
agreements or because they are legally required to do so.
Investors who hold securities in street name will be indirect
holders, not holders, of those securities.
Legal
Holders
Our obligations, as well as the obligations of any applicable
trustee and of any third parties employed by us or a trustee,
run only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the
securities only in global form.
For example, once we make a payment or give a notice to the
holder, we have no further responsibility for the payment or
notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along
to the indirect holders but does not do so. Similarly, we may
want to obtain the approval of the holders to amend an
indenture, to relieve us of the consequences of a default or of
our obligation to comply with a particular provision of the
indenture or for other purposes. In such an event, we would seek
approval only from the holders, and not the indirect holders, of
the securities. Whether and how the holders contact the indirect
holders is up to the holders.
Special
Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you
should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders consent, if
ever required;
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whether and how you can instruct it to send you securities
registered in your own name so you can be a holder, if that is
permitted in the future;
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how it would exercise rights under the securities if there were
a default or other event triggering the need for holders to act
to protect their interests; and
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if the securities are in book-entry form, how the
depositarys rules and procedures will affect these matters.
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Global
Securities
A global security is a security held by a depositary that
represents one or any other number of individual securities.
Generally, all securities represented by the same global
securities will have the same terms.
Each security issued in book-entry form will be represented by a
global security that we deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary, its nominee or a
successor depositary, unless special termination situations
arise. We describe those situations below under
Special Situations When a Global Security Will
Be Terminated. As a result of these arrangements, the
depositary, or its nominee, will be the sole registered owner
and holder of all securities represented by a global
17
security, and investors will be permitted to own only beneficial
interests in a global security. Beneficial interests must be
held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will
not be a holder of the security, but only an indirect holder of
a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates
that the security will be issued in global form only, then the
security will be represented by a global security at all times
unless and until the global security is terminated. If
termination occurs, we may issue the securities through another
book-entry clearing system or decide that the securities may no
longer be held through any book-entry clearing system.
Special
Considerations For Global Securities
As an indirect holder, an investors rights relating to a
global security will be governed by the account rules of the
investors financial institution and of the depositary, as
well as general laws relating to securities transfers. We do not
recognize an indirect holder as a holder of securities and
instead deal only with the depositary that holds the global
security.
If securities are issued only in the form of a global security,
an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his
or her name, and cannot obtain non-global certificates for his
or her interest in the securities, except in the special
situations we describe below;
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an investor will be an indirect holder and must look to his or
her own bank or broker for payments on the securities and
protection of his or her legal rights relating to the
securities, as we describe under Legal
Holders above;
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an investor may not be able to sell interests in the securities
to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective;
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the depositarys policies, which may change from time to
time, will govern payments, transfers, exchanges and other
matters relating to an investors interest in a global
security. We and any applicable trustee have no responsibility
for any aspect of the depositarys actions or for its
records of ownership interests in a global security. We and the
trustee also do not supervise the depositary in any way;
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the depositary may, and we understand that DTC will, require
that those who purchase and sell interests in a global security
within its book-entry system use immediately available funds,
and your broker or bank may require you to do so as
well; and
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financial institutions that participate in the depositarys
book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies
affecting payments, notices and other matters relating to the
securities. There may be more than one financial intermediary in
the chain of ownership for an investor. We do not monitor and
are not responsible for the actions of any of those
intermediaries.
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Special
Situations When A Global Security Will Be Terminated
In a few special situations described below, the global security
will terminate and interests in it will be exchanged for
physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or
in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in securities transferred to their own name, so that
they will be direct holders. We have described the rights of
holders and street name investors above.
18
The global security will terminate when the following special
situations occur:
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if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as
depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate
that global security; or
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if an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
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The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary,
and not we or any applicable trustee, is responsible for
deciding the names of the institutions that will be the initial
direct holders.
SELLING
STOCKHOLDERS
The stockholders named below may from time to time offer and
sell pursuant to this prospectus and the applicable prospectus
supplement up to an aggregate of 1,180,638 shares of common
stock.
The following table sets forth for the selling stockholders, to
our knowledge, the number of shares and percentage of our common
stock beneficially owned as of October 31, 2008, the number
of shares of common stock offered hereby and the number of
shares and percentage of our common stock to be owned after
completion of the sale of the maximum number of shares that may
be offered by the selling stockholders under this prospectus.
Beneficial ownership is determined in accordance with the rules
and regulations of the SEC and includes voting or investment
power with respect to our common stock. Shares of common stock
issuable pursuant to the exercise of any option, warrant or
other right or the conversion of any other security that are
currently exercisable or convertible, or exercisable or
convertible within 60 days of October 31, 2008, are
considered outstanding and beneficially owned by the person
holding the option, warrant, right or other security for the
purpose of calculating the percentage ownership of that person
but are not considered outstanding for the purpose of
calculating the percentage ownership of any other person. Except
as otherwise noted, the selling stockholders in the table below
have sole voting and investment power with respect to all of the
shares of common stock beneficially owned by them, subject to
community property laws, where applicable. The percentages in
the table are based on 29,921,107 shares of our common
stock outstanding as of October 31, 2008.
The following table may be expanded or supplemented in
prospectus supplements as new information becomes available to
us. All information contained in the table below is based upon
information provided to us by the selling stockholders, and we
have not independently verified this information. The address of
each of the selling stockholders is
c/o Emergent
BioSolutions Inc., 2273 Research Boulevard, Suite 400,
Rockville, Maryland 20850.
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Beneficial Ownership
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Maximum
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After the Sale of
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Number of
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the Maximum
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Beneficial Ownership as of October 31, 2008
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Shares to
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Number of Shares(1)
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Name of Selling Stockholder
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Shares
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Percentage
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be Offered
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Shares
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Percentage
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BioPharm, L.L.C(2)
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3,665,043
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12.2
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%
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316,648
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3,348,395
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11.2
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%
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Biovac, L.L.C.(3)
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1,599,155
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5.3
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%
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138,162
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1,460,993
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4.9
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%
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Intervac, L.L.C.(4)
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7,681,835
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25.7
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%
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663,685
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7,018,150
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23.5
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%
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Intervac Management, L.L.C.(5)
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719,275
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2.4
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%
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62,143
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657,132
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2.2
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%
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(1) |
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We do not know when or in what amounts the selling stockholders
may offer shares for sale. The selling stockholders might not
sell any or all of the shares offered by this prospectus.
Because the selling stockholders may offer all or some of the
shares pursuant to this prospectus, and because there are
currently no agreements, arrangements or understandings with
respect to the sale of any of the shares, we cannot estimate the
number of the shares that will be held by the selling
stockholders after completion of the offering. However, for
purposes of this table, we have assumed that, after completion
of the offering, none of the shares covered by this prospectus
will be held by the selling stockholders. |
19
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(2) |
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Fuad El-Hibri, our chief executive officer and chairman of our
board of directors, holds a 40.17% equity interest in BioPharm,
L.L.C. and in that capacity has the power to direct the voting
and disposition of all shares of our common stock held by
BioPharm. Mr. El-Hibri disclaims beneficial ownership of
these shares for purposes of Section 16, except to the
extent of his pecuniary interest in 1,472,248 shares. |
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(3) |
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Fuad El-Hibri with his wife, as tenants by the entirety, hold
89.2% of the ownership interests in Biovac, L.L.C. and have the
power to vote and dispose of all shares of our common stock held
by Biovac. Mr. El-Hibri disclaims beneficial ownership of
these shares for purposes of Section 16, except to the
extent of his pecuniary interest in 1,426,446 shares. |
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(4) |
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Fuad El-Hibri is the general manager of Intervac, L.L.C. and in
that capacity has the power to vote and dispose of all shares of
our common stock held by Intervac, L.L.C. Mr. El-Hibri and
his wife, as tenants by the entirety, hold 38.0276% equity
interest in Intervac, L.L.C. Under a voting agreement with the
Shirley G. Crowe Revocable Trust, Mr. El-Hibri has the
power to vote an additional 18.8% of the ownership interests in
Intervac, L.L.C. on any matter. As a result, Mr. El-Hibri
has the power to direct the voting of more than 50% of the
aggregate ownership interests in Intervac, L.L.C. The voting
agreement between Mr. El-Hibri and the Shirley G.
Crowe Revocable Trust automatically terminates on
October 21, 2010. Mr. El-Hibri disclaims beneficial
ownership of the shares of common stock held by Intervac, L.L.C.
for purposes of Section 16, except to the extent of his
pecuniary interest therein. |
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(5) |
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Fuad El-Hibri is the general manager of Intervac Management,
L.L.C. and in that capacity has the power to vote and dispose of
all shares of our common stock held by Intervac Management.
Mr. El-Hibri is appointed as general manager pursuant to
the terms of the operating agreement of Intervac Management,
which may only be amended with the unanimous consent of the
members of Intervac Management. Mr. El-Hibri and his wife,
as tenants by the entirety, hold 31.11% of the ownership
interests in Intervac Management. Mr. El-Hibri disclaims
beneficial ownership of these shares for purposes of
Section 16, except to the extent of his pecuniary interest
in 223,766 shares. |
As of October 31, 2008, Fuad El-Hibri was the beneficial
owner of 13,912,300 shares, or approximately 47%, of our
outstanding common stock. Mr. El-Hibris beneficial
ownership consists of the shares of our common stock held by
BioPharm, L.L.C., Biovac, L.L.C., Intervac, L.L.C. and Intervac
Management, L.L.C. set forth in the table above and
246,992 shares of our common stock held directly by
Mr. El-Hibri. After the completion of the sale of the
maximum number of shares that may be offered by the selling
stockholders under this prospectus and based on shares of our
common stock outstanding as of October 31, 2008,
Mr. El-Hibri would be the beneficial owner of
12,731,662 shares, or approximately 43%, of our outstanding
common stock.
Mr. El-Hibri has served as our chief executive officer and
as chairman of our board of directors since June 2004.
Mr. El-Hibri served as our president from March 2006 to
April 2007.
PLAN OF
DISTRIBUTION
Securities
Offered by Us
We may sell the securities under this prospectus in one or more
of the following ways from time to time:
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through agents;
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to or through underwriters;
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through dealers;
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directly to purchasers; or
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through a combination of these methods of sale.
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The securities that we distribute by any of these methods may be
sold, in one or more transactions, at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to prevailing market prices;
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negotiated prices; or
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a combination of these pricing methods.
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Offers to purchase offered securities may be solicited by agents
designated by us from time to time. Any agent involved in the
offer or sale of the offered securities in respect of which this
prospectus is delivered will be named, and any commissions
payable by us will be set forth, in the applicable prospectus
supplement. Unless otherwise set forth in the applicable
prospectus supplement, any agent will be acting on a reasonable
best efforts basis for the period of its appointment. Any agent
may be deemed to be an underwriter, as that term is defined in
the Securities Act, of the offered securities so offered and
sold.
We will set forth in a prospectus supplement the terms of the
offering of our securities, including:
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the name or names of any agents, underwriters or dealers;
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the purchase price of our securities being offered and the
proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase
additional securities from us;
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any agency fees or underwriting discounts and commissions and
other items constituting agents or underwriters
compensation;
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the public offering price;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchanges on which such securities may be listed.
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If offered securities are sold to the public by means of an
underwritten offering, either through underwriting syndicates
represented by managing underwriters or directly by the managing
underwriters, we will execute an underwriting agreement with an
underwriter or underwriters, and the names of the specific
managing underwriter or underwriters, as well as any other
underwriters, will be set forth in the applicable prospectus
supplement. In addition, the terms of the transaction, including
commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the
applicable prospectus supplement, which prospectus supplement
will be used by the underwriters to make resales of the offered
securities. If underwriters are utilized in the sale of the
offered securities, the offered securities will be acquired by
the underwriters for their own account and may be resold from
time to time in one or more transactions, including:
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negotiated transactions;
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at fixed public offering prices; or
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at varying prices determined by the underwriters at the time of
sale.
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In addition, unless otherwise indicated in the prospectus
supplement, the underwriting agreement will provide that the
obligations of the underwriters are subject to specified
conditions precedent and that the underwriters with respect to a
sale of offered securities will be obligated to purchase all of
the offered securities of a series if any are purchased.
We may grant to the underwriters options to purchase additional
offered securities to cover over-allotments, if any, at the
public offering price with additional underwriting discounts or
commissions, as may be set forth in the applicable prospectus
supplement. If we grant any over-allotment option, the terms of
the over-allotment option will be set forth in the applicable
prospectus supplement.
If a dealer is utilized in the sales of offered securities, we
will sell the offered securities to the dealer as principal. The
dealer may then resell the offered securities to the public at
varying prices to be determined by the dealer at the time of
resale. Any dealer may be deemed to be an underwriter of the
offered securities so offered and sold. The name of the dealer
and the terms of the transaction will be set forth in the
applicable prospectus supplement.
21
We may directly solicit offers to purchase offered securities
and sell offered securities directly to institutional investors
or others with respect to any resale of the offered securities.
The terms of any of these sales will be described in the
applicable prospectus supplement.
Offered securities may also be offered and sold in connection
with a remarketing upon their purchase, in accordance with a
redemption or repayment pursuant to their terms, or otherwise by
one or more remarketing firms acting as principals for their own
accounts or as agents for us. Any remarketing firm will be
identified and the terms of its agreements, if any, with us and
its compensation will be described in the applicable prospectus
supplement. Remarketing firms may be deemed to be underwriters
in connection with the offered securities remarketed by them.
Agents, underwriters, dealers and remarketing firms may be
entitled, under agreements entered into with us, to
indemnification by us against specified civil liabilities,
including liabilities under the Securities Act that may arise
from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a
material fact in this prospectus, any supplement or amendment
hereto, or in the registration statement of which this
prospectus forms a part, or to contribution with respect to
payments which the agents, underwriters or dealers may be
required to make.
We may authorize underwriters or other persons acting as our
agents to solicit offers by specified institutions to purchase
offered securities from us pursuant to contracts providing for
payments and delivery on a future date, which will be set forth
in the applicable prospectus supplement. Institutions with which
these contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. However, in
all cases, these institutions must be approved by us. The
obligations of any purchaser under any contract will be subject
to the condition that the purchase of the offered securities
shall not, at the time of delivery, be prohibited under the laws
of the jurisdiction to which the purchaser is subject. The
underwriters and other agents will not have any responsibility
in respect of the validity or performance of these contracts.
Underwriters, dealers, agents and remarketing firms may be
customers of, engage in transactions with, or perform services
for, us in the ordinary course of business for which they have
received or will continue to receive customary compensation.
Unless otherwise specified in the applicable prospectus
supplement, each class or series of securities will be a new
issue with no established trading market, other than our common
stock, which is traded on the New York Stock Exchange. We may
elect to list any other class or series of securities on any
exchange and, in the case of our common stock, on any additional
exchange. However, unless otherwise specified in the applicable
prospectus supplement, we will not be obligated to do so. It is
possible that one or more underwriters may make a market in a
class or series of securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any
time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the offered
securities.
In connection with an offering, an underwriter may purchase and
sell securities in the open market. These transactions may
include short sales, stabilizing transactions and purchases to
cover positions created by short sales. Short sales involve the
sale by the underwriters of a greater number of securities than
they are required to purchase in the offering.
Covered short sales are sales made in an amount not
greater than the underwriters option to purchase
additional securities from us, if any, in the offering. If the
underwriters have an over-allotment option to purchase
additional securities from us, the underwriters may close out
any covered short position by either exercising their
over-allotment option or purchasing securities in the open
market. In determining the source of securities to close out the
covered short position, the underwriters may consider, among
other things, the price of securities available for purchase in
the open market as compared to the price at which they may
purchase securities through the over-allotment option.
Naked short sales are any sales in excess of such
option or where the underwriters do not have an over-allotment
option. The underwriters must close out any naked short position
by purchasing securities in the open market. A naked short
position is more likely to be created if the underwriters are
concerned that there may be downward pressure on the price of
the securities in the open market after pricing that could
adversely affect investors who purchase in the offering.
22
Accordingly, to cover these short sales positions or to
otherwise stabilize or maintain the price of the securities, the
underwriters may bid for or purchase securities in the open
market and may impose penalty bids. If penalty bids are imposed,
selling concessions allowed to syndicate members or other
broker-dealers participating in the offering are reclaimed if
securities previously distributed in the offering are
repurchased, whether in connection with stabilization
transactions or otherwise. The effect of these transactions may
be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open
market. The impositions of a penalty bid may also affect the
price of the securities to the extent that it discourages resale
of the securities. The magnitude or effect of any stabilization
or other transactions is uncertain. These transactions may be
effected on the New York Stock Exchange or otherwise and, if
commenced, may be discontinued at any time.
Common
Stock Offered by the Selling Stockholders
The shares of common stock covered by this prospectus may be
offered and sold from time to time by the selling stockholders.
The term selling stockholders includes donees,
pledgees, transferees or other
successors-in-interest
selling shares received after the date of this prospectus from a
selling stockholder as a gift, pledge, partnership distribution
or other non-sale related transfer. The selling stockholders may
offer and sell the shares of common stock covered by this
prospectus from time to time on any stock exchange on which the
shares are listed, in the over-the-counter market, in privately
negotiated transactions or otherwise, at fixed prices that may
be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at prices
otherwise negotiated. The selling stockholders will act
independently of us in making decisions with respect to the
timing, manner and size of each sale, and we cannot assure you
that the selling stockholders will sell all or any portion of
the shares offered hereby. We will not receive any proceeds from
the sale of shares of common stock by the selling stockholders.
The selling stockholders may offer and sell the shares of common
stock covered by this prospectus by one or more of the following
methods, including, without limitation:
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block trades in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell
a portion of the block as principal to facilitate the
transaction;
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purchases by a broker or dealer as principal and resale by the
broker or dealer for its own account pursuant to this prospectus;
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ordinary brokerage transactions and transactions in which the
broker solicits purchases;
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at the market transactions to or through market
makers or into an existing market for our common stock;
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in privately negotiated transactions;
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short sales;
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in options, swaps or other derivative transactions that may or
may not be listed on an exchange;
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one or more underwritten offerings on a firm commitment or best
efforts basis; or
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any combination of the above.
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The selling stockholders may engage brokers and dealers, and any
brokers or dealers may arrange for other brokers or dealers to
participate in effecting sales of the shares. These brokers,
dealers or underwriters may act as principals, or as agents of
the selling stockholders. Broker-dealers may agree with the
selling stockholders to sell a specified number of the shares of
common stock at a stipulated price per share. If a broker-dealer
is unable to sell shares of common stock acting as agent for the
selling stockholders, it may purchase as principal any unsold
shares of common stock at the stipulated price. Broker-dealers
who acquire shares of common stock as principals may thereafter
resell the shares of common stock from time to time in
transactions in any stock exchange on which the shares are then
listed, at prices and on terms then prevailing at the time of
sale, at prices related to the then-current market price or in
negotiated transactions. Broker-dealers may use block
transactions and sales to and through broker-dealers, including
transactions of the nature described above.
To the extent required under the Securities Act, the aggregate
amount of the shares of common stock being offered by the
selling stockholders and the terms of the offering, the names of
any agents, brokers, dealers or
23
underwriters and any applicable commission with respect to a
particular offering will be set forth in an accompanying
prospectus supplement. Any underwriters, dealers, brokers or
agents participating in the distribution of the shares may
receive compensation in the form of underwriting discounts,
concessions, commissions or fees from the selling stockholders
and/or
purchasers of the selling stockholders shares, for whom
they may act, which compensation as to a particular
broker-dealer might be in excess of customary commissions.
Any underwriters, brokers, dealers or agents that participate in
the distribution of the shares of common stock may be deemed to
be underwriters within the meaning of the Securities Act, and
any discounts, concessions, commissions or fees received by them
and any profit on the resale of the shares of common stock sold
by them may be deemed to be underwriting discounts and
commissions.
The selling stockholders may enter into hedging transactions
with broker-dealers and the broker-dealers may engage in short
sales of the common stock in the course of hedging the positions
they assume with the selling stockholders, including, without
limitation, in connection with distributions of the shares of
common stock by those broker-dealers. The selling stockholders
may enter into option or other transactions with broker-dealers
that involve the delivery of the shares of common stock offered
hereby to the broker-dealers, who may then resell or otherwise
transfer those securities.
The selling stockholders and other persons participating in the
sale or distribution of the shares of common stock will be
subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Regulation M.
This regulation may limit the timing of purchases and sales of
any of the shares of common stock by the selling stockholders
and any other person. The anti-manipulation rules under the
Exchange Act may apply to sales of shares of common stock in the
market and to the activities of the selling stockholders and
their affiliates. Furthermore, Regulation M may restrict
the ability of any person engaged in the distribution of the
common stock to engage in market-making activities with respect
to the particular shares being distributed for a period of up to
five business days before the distribution. These restrictions
may affect the marketability of the common stock and the ability
of any person or entity to engage in market-making activities
with respect to the securities.
The selling stockholders may also sell the shares in accordance
with Rule 144 under the Securities Act rather than pursuant
to this prospectus, regardless of whether the shares are covered
by this prospectus.
We will make copies of this prospectus available to the selling
stockholders and any of its successors in interest for purposes
of satisfying the prospectus delivery requirements of the
Securities Act, if applicable.
Pursuant to the registration rights agreements with the selling
stockholders, we have agreed to indemnify in certain
circumstances the selling stockholders against certain
liabilities, including certain liabilities under the Securities
Act. The selling stockholders have agreed to indemnify us in
certain circumstances against certain liabilities, including
certain liabilities under the Securities Act. The selling
stockholders may indemnify any underwriter or broker-dealer that
participates in transactions involving the sale of common stock
against certain liabilities, including liabilities arising under
the Securities Act.
In order to comply with the securities laws of some states, if
applicable, the shares of common stock offered by this
prospectus must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in some
states the shares of common stock may not be sold unless they
have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification
requirement is available and is complied with.
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution.
LEGAL
MATTERS
The validity of the securities offered hereby is being passed
upon for us by Wilmer Cutler Pickering Hale and Dorr LLP, New
York, New York.
24
EXPERTS
Ernst & Young LLP, independent registered public accounting
firm, has audited our consolidated financial statements included
in our Annual Report on Form
10-K/A for
the year ended December 31, 2007, and the effectiveness of
our internal control over financial reporting as of
December 31, 2007, as set forth in their reports, which are
incorporated by reference in this prospectus and elsewhere in
the registration statement. Our financial statements are
incorporated by reference in reliance on Ernst & Young
LLPs reports, given on their authority as experts in
accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the
SEC as required by the Exchange Act. You can find, copy and
inspect information we file at the SECs public reference
room at 100 F Street, N.E., Washington, D.C.
20549. You can call the SEC at
1-800-SEC-0330
for further information about the public reference room. You can
review our electronically filed reports, proxy and information
statements on the SECs web site at www.sec.gov or on our
web site at www.emergentbiosolutions.com. Information included
on our web site is not part of this prospectus or any prospectus
supplement.
This prospectus is part of a registration statement that we
filed with the SEC. The registration statement contains more
information than this prospectus regarding us and our
securities, including exhibits and schedules. You can obtain a
copy of the registration statement from the SEC at any address
listed above or from the SECs web site.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate into this
prospectus information that we file with the SEC in other
documents. This means that we can disclose important information
to you by referring to other documents that contain that
information. Any information that we incorporate by reference is
considered part of this prospectus.
Information contained in this prospectus and information that we
file with the SEC in the future and incorporate by reference in
this prospectus automatically modifies and supersedes previously
filed information including information in previously filed
documents or reports that have been incorporated by reference in
this prospectus, to the extent the new information differs from
or is inconsistent with the old information. Any information so
modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this prospectus.
We incorporate by reference, as of their respective dates of
filing, the documents listed below that we have filed with the
SEC and any documents that we file with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus:
(1) our Annual Report on
Form 10-K
for the year ended December 31, 2007 filed with the SEC on
March 10, 2008;
(2) our Annual Report on
Form 10-K/A
for the year ended December 31, 2007 filed with the SEC on
March 13, 2008;
(3) our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2008 filed with the SEC on
May 7, 2008;
(4) our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2008 filed with the SEC on
August 7, 2008;
(5) our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2008 filed with the SEC on November 7,
2008;
(6) our Current Report on
Form 8-K
filed with the SEC on May 2, 2008;
(7) our Current Report on
Form 8-K
filed with the SEC on May 29, 2008;
(8) our Current Report on
Form 8-K
filed with the SEC on June 27, 2008;
25
(9) our Current Report on
Form 8-K
filed with the SEC on August 4, 2008;
(10) our Current Report on
Form 8-K
filed with the SEC on August 6, 2008;
(11) our Current Report on
Form 8-K
filed with the SEC on August 21, 2008;
(12) our Current Report on
Form 8-K
filed with the SEC on October 6, 2008;
(13) any other filings pursuant to the Exchange Act after
the date of filing the initial registration statement and prior
to the effectiveness of the registration statement; and
(14) the description of our common stock contained in our
registration statement on
Form 8-A
filed with the SEC on November 7, 2006, including any
amendments or reports filed for the purpose of updating that
description.
You may request a copy of these documents, which will be
provided to you at no cost, by writing or telephoning us using
the following contact information:
Emergent BioSolutions Inc.
2273 Research Boulevard
Rockville, Maryland 20850
Attn: Vice President, Investor Relations
Telephone:
(301) 795-1877
You should rely only on the information contained in this
prospectus, including information incorporated by reference as
described above, any accompanying prospectus supplement or any
free writing prospectus we may authorize to be
delivered to you. We have not authorized anyone to provide you
with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any
date other than the date on the front of those documents or that
any document incorporated by reference is accurate as of any
date other than its filing date. You should not consider this
prospectus to be an offer or solicitation relating to the
securities in any jurisdiction in which such an offer or
solicitation relating to the securities is not authorized.
Furthermore, you should not consider this prospectus to be an
offer or solicitation relating to the securities if the person
making the offer or solicitation is not qualified to do so, or
if it is unlawful for you to receive such an offer or
solicitation.
26
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the various expenses to be
incurred in connection with the registration of the securities
being registered hereby, all of which will be borne by the
Registrant. All amounts shown are estimates except the SEC
registration fee.
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SEC registration fee
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$
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4,717
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Transfer agents, trustees and depositorys fees
and expenses
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10,000
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Printing and engraving expenses
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25,000
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Legal fees and expenses
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50,000
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Accounting fees and expenses
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30,000
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Miscellaneous
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5,283
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Total expenses
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$
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125,000
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Item 15.
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Indemnification
of Directors and Officers.
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Section 102 of the General Corporation Law of the State of
Delaware permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or
its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty
of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit.
The Registrants restated certificate of incorporation
provides that no director of the Registrant shall be personally
liable to it or its stockholders for monetary damages for any
breach of fiduciary duty as director, notwithstanding any
provision of law imposing such liability, except to the extent
that the General Corporation Law of the State of Delaware
prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty.
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation has the power to indemnify
a director, officer, employee, or agent of the corporation and
certain other persons serving at the request of the corporation
in related capacities against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by the person in
connection with an action, suit or proceeding to which he is or
is threatened to be made a party by reason of such position, if
such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except
that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to
any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or other adjudicating
court determines that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for such expenses
which the Court of Chancery or such other court shall deem
proper.
The Registrants restated certificate of incorporation
provides that the Registrant will indemnify each person who was
or is a party or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Registrant) by reason
of the fact that he or she is or was, or has agreed to become, a
director or officer of the Registrant, or is or was serving, or
has agreed to serve, at the Registrants request as a
director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise, including any employee
benefit plan, (all such persons being referred to hereafter as
an Indemnitee), or by reason of any action alleged
to have been taken or omitted in such capacity, against all
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
or on behalf of Indemnitee in connection with such action, suit
or proceeding and any appeal therefrom, if Indemnitee acted in
good faith and in a manner which Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the
II-1
Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The Registrants restated certificate
of incorporation provides that the Registrant will indemnify any
Indemnitee who was or is a party to or threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the Registrant to procure a judgment in our
favor by reason of the fact that the Indemnitee is or was, or
has agreed to become, a director or officer of the Registrant,
or is or was serving, or has agreed to serve, at our request, as
a director, officer, partner, employee or trustee of or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise, (including any employee
benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses
(including attorneys fees) and, to the extent permitted by
law, amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with such action,
suit or proceeding and any appeal therefrom, if Indemnitee acted
in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the
Registrant, except that no indemnification shall be made with
respect to any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Registrant, unless,
and only to the extent, that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for
such expense (including attorneys fees) which the Court of
Chancery of Delaware or the court in which such action or suit
was brought shall deem proper. Notwithstanding the foregoing, to
the extent that an Indemnitee has been successful, on the merits
or otherwise, in defense of any action, suit or proceeding,
Indemnitee shall be indemnified by the Registrant against all
expenses (including attorneys fees) actually and
reasonably incurred in connection therewith. Expenses must be
advanced to an Indemnitee under certain circumstances.
The Registrant has entered into agreements to indemnify the
Registrants directors and executive officers. These
agreements, among other things, provide that the Registrant will
indemnify the director or executive officer to the fullest
extent permitted by law for claims arising in his or her
capacity as a director, officer, manager, employee, agent or
representative of the Registrant. The indemnification agreements
also establish the procedures that will apply in the event a
director or officer makes a claim for indemnification.
The Registrant maintains a general liability insurance policy
which covers certain liabilities of directors and officers of
the Registrant arising out of claims based on acts or omissions
in their capacities as directors or officers.
In any underwriting agreement the Registrant enters into in
connection with the sale of common stock being registered
hereby, the underwriters will agree to indemnify, under certain
conditions, the Registrant, the Registrants directors, the
Registrants officers and persons who control the Registrant with
the meaning of the Securities Act of 1933 against certain
liabilities.
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1
|
|
The form of equity underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
1
|
.2
|
|
The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.1
|
|
Restated Certificate of Incorporation of the Registrant
(Incorporated by reference to Exhibit 4.1 to the
Registrants Registration Statement on
Form S-8
(File
No. 333-139190)
filed on December 8, 2006)
|
|
4
|
.2
|
|
Amended and Restated By-laws of the Registrant, as amended
(Incorporated by reference to Exhibit 3.2 to the
Registrants Annual Report on
Form 10-K
for the year ended December 31, 2007 (SEC
File No. 333-136622)
filed on March 7, 2008)
|
|
4
|
.3
|
|
Specimen Certificate Evidencing Shares of Common Stock
(Incorporated by reference to Exhibit 4.1 to Amendment
No. 3 to the Registrants Registration Statement on
Form S-1
(File
No. 333-136622)
filed on October 20, 2006)
|
|
4
|
.4
|
|
Registration Rights Agreement, dated June 23, 2005, between
the Registrant and Microscience Investments Limited, formerly
Microscience Holdings plc (Incorporated by reference to
Exhibit 4.2 to the Registrants Registration Statement
on
Form S-1
(File
No. 333-136622)
filed on August 14, 2006)
|
II-2
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.5
|
|
Registration Rights Agreement, dated September 22, 2006,
among the Registrant and the entities listed on Schedule 1
thereto (Incorporated by reference to Exhibit 4.3 to
Amendment No. 1 to the Registrants Registration
Statement on
Form S-1
(File
No. 333-136622)
filed on September 25, 2006)
|
|
4
|
.6
|
|
Rights Agreement, dated November 14, 2006, between the
Registrant and American Stock Transfer &
Trust Company (Incorporated by reference to
Exhibit 4.3 to the Registrants Registration Statement
on
Form S-8
(File
No. 333-139090)
filed on December 8, 2006)
|
|
4
|
.7
|
|
Assignment and Assumption Agreement by and between the
Registrant, Microscience Investments Limited and the Investors
named therein, dated March 8, 2007, relating to the
Registration Rights Agreement, dated June 23, 2005, between
the Registrant and Microscience Investments Limited
(Incorporated by reference to Exhibit 4.5 to the
Registrants Annual Report on
Form 10-K
for the year ended December 31, 2006 (File
No. 001-33137)
filed on March 27, 2007)
|
|
4
|
.8
|
|
Form of Senior Indenture
|
|
4
|
.9
|
|
Form of Subordinated Indenture
|
|
4
|
.10
|
|
The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.11
|
|
The form of any subordinated note with respect to each
particular series of subordinated notes issued hereunder will be
filed as an exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.12
|
|
The form of any warrant agreement with respect to each
particular series of warrants issued hereunder will be filed as
an exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.13
|
|
The form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of
preferred stock certificate will be filed as exhibits to a
Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
5
|
.1
|
|
Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
|
|
12
|
.1
|
|
Statement re: Computation of Ratio of Earnings to Fixed Charges
|
|
23
|
.1
|
|
Consent of Ernst & Young LLP (Independent Registered
Public Accounting Firm)
|
|
23
|
.2
|
|
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (Included
in Exhibit 5.1)
|
|
24
|
.1
|
|
Power of Attorney (Included on signature page)
|
|
25
|
.1
|
|
The Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Senior Indenture will be incorporated herein by reference
from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939
|
|
25
|
.2
|
|
The Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Subordinated Indenture will be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939
|
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than
II-3
20 percent change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective Registration Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
A. Each prospectus filed by the Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the Registration
Statement as of the date the filed prospectus was deemed part of
and included in the Registration Statement; and
B. Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a Registration
Statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the Registration Statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the Registration
Statement relating to the securities in the Registration
Statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a Registration Statement or prospectus that is part of
the Registration Statement or made in a document incorporated or
deemed incorporated by reference into the Registration Statement
or prospectus that is part of the Registration Statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the Registration Statement or prospectus that was part of the
Registration Statement or made in any such document immediately
prior to such effective date;
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: The undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this Registration
Statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
II-4
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(6) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants annual report
pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(8) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2)
of the Trust Indenture Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Rockville, State of Maryland, on November 12, 2008.
EMERGENT BIOSOLUTIONS INC.
Fuad El-Hibri
Chief Executive Officer and
Chairman of the Board of Directors
SIGNATURES
AND POWER OF ATTORNEY
We, the undersigned officers and directors Emergent BioSolutions
Inc., hereby severally constitute and appoint Fuad El-Hibri and
R. Don Elsey, and each of them singly, our true and lawful
attorneys with full power to any of them, and to each of them
singly, to sign for us and in our names in the capacities
indicated below the Registration Statement on
Form S-3
filed herewith and any and all pre-effective and post-effective
amendments to said Registration Statement and any subsequent
Registration Statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same
with all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, and
generally to do all such things in our name and behalf in our
capacities as officers and directors to enable Emergent
BioSolutions Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Fuad
El-Hibri
Fuad
El-Hibri
|
|
Chief Executive Officer and
Chairman of the Board of Directors
(Principal Executive Officer)
|
|
November 12, 2008
|
|
|
|
|
|
/s/ R.
Don Elsey
R.
Don Elsey
|
|
Senior Vice President, Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
|
|
November 12, 2008
|
|
|
|
|
|
/s/ Joe
Allbaugh
Joe
Allbaugh
|
|
Director
|
|
November 12, 2008
|
|
|
|
|
|
/s/ Zsolt
Harsanyi, Ph.D.
Zsolt
Harsanyi, Ph.D.
|
|
Director
|
|
November 12, 2008
|
|
|
|
|
|
/s/ Jerome
M. Hauer
Jerome
M. Hauer
|
|
Director
|
|
November 12, 2008
|
II-6
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Ronald
B. Richard
Ronald
B. Richard
|
|
Director
|
|
November 12, 2008
|
|
|
|
|
|
/s/ Louis
W. Sullivan, M.D.
Louis
W. Sullivan, M.D.
|
|
Director
|
|
November 12, 2008
|
|
|
|
|
|
/s/ Dr. Sue
Bailey
Dr. Sue
Bailey
|
|
Director
|
|
November 12, 2008
|
II-7
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1
|
|
The form of equity underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
1
|
.2
|
|
The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.1
|
|
Restated Certificate of Incorporation of the Registrant
(Incorporated by reference to Exhibit 4.1 to the
Registrants Registration Statement on
Form S-8
(File
No. 333-139190)
filed on December 8, 2006)
|
|
4
|
.2
|
|
Amended and Restated By-laws of the Registrant, as amended
(Incorporated by reference to Exhibit 3.2 to the
Registrants Annual Report on
Form 10-K
for the year ended December 31, 2007 (SEC
File No. 333-136622)
filed on March 7, 2008)
|
|
4
|
.3
|
|
Specimen Certificate Evidencing Shares of Common Stock
(Incorporated by reference to Exhibit 4.1 to Amendment
No. 3 to the Registrants Registration Statement on
Form S-1
(File
No. 333-136622)
filed on October 20, 2006)
|
|
4
|
.4
|
|
Registration Rights Agreement, dated June 23, 2005, between
the Registrant and Microscience Investments Limited, formerly
Microscience Holdings plc (Incorporated by reference to
Exhibit 4.2 to the Registrants Registration Statement
on
Form S-1
(File
No. 333-136622)
filed on August 14, 2006)
|
|
4
|
.5
|
|
Registration Rights Agreement, dated September 22, 2006,
among the Registrant and the entities listed on Schedule 1
thereto (Incorporated by reference to Exhibit 4.3 to
Amendment No. 1 to the Registrants Registration
Statement on
Form S-1
(File
No. 333-136622)
filed on September 25, 2006)
|
|
4
|
.6
|
|
Rights Agreement, dated November 14, 2006, between the
Registrant and American Stock Transfer &
Trust Company (Incorporated by reference to
Exhibit 4.3 to the Registrants Registration Statement
on
Form S-8
(File
No. 333-139090)
filed on December 8, 2006)
|
|
4
|
.7
|
|
Assignment and Assumption Agreement by and between the
Registrant, Microscience Investments Limited and the Investors
named therein, dated March 8, 2007, relating to the
Registration Rights Agreement, dated June 23, 2005, between
the Registrant and Microscience Investments Limited
(Incorporated by reference to Exhibit 4.5 to the
Registrants Annual Report on
Form 10-K
for the year ended December 31, 2006 (File
No. 001-33137)
filed on March 27, 2007)
|
|
4
|
.8
|
|
Form of Senior Indenture
|
|
4
|
.9
|
|
Form of Subordinated Indenture
|
|
4
|
.10
|
|
The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as an
exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.11
|
|
The form of any subordinated note with respect to each
particular series of subordinated notes issued hereunder will be
filed as an exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.12
|
|
The form of any warrant agreement with respect to each
particular series of warrants issued hereunder will be filed as
an exhibit to a Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
4
|
.13
|
|
The form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of
preferred stock certificate will be filed as exhibits to a
Current Report of the Registrant on
Form 8-K
and incorporated herein by reference
|
|
5
|
.1
|
|
Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
|
|
12
|
.1
|
|
Statement re: Computation of Ratio of Earnings to Fixed Charges
|
|
23
|
.1
|
|
Consent of Ernst & Young LLP (Independent Registered
Public Accounting Firm)
|
|
23
|
.2
|
|
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (Included
in Exhibit 5.1)
|
|
24
|
.1
|
|
Power of Attorney (Included on signature page)
|
|
25
|
.1
|
|
The Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Senior Indenture will be incorporated herein by reference
from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939
|
|
25
|
.2
|
|
The Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Subordinated Indenture will be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939
|