Exhibit 9.6
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment and Assumption”) is dated as of March 8, 2007 (the “Effective Date”), by and between Microscience Investments Limited, a company organized under the laws of England and Wales under the company number 05106930 (“Microscience”), the persons or entities listed on Schedule A attached hereto (the “Investors”), each of which is a party to that certain Subscription and Shareholders’ Agreement, dated as of February 18, 2002, and BioPharm, L.L.C., a Maryland limited liability company (“BioPharm”). Each of Microscience, the Investors, and BioPharm is referred to herein as a “Party” and collectively, are referred to as the “Parties”.
RECITALS
WHEREAS, Microscience is a party to the Share Exchange Agreement (the “Share Exchange Agreement”), dated as of June 23, 2005, by and between Microscience and Emergent Europe Inc., a Delaware corporation, whereby Microscience, previously Microscience Holdings PLC, received an aggregate of 1,264,051 shares of the Class A Common Stock, par value $0.01 per share, of Emergent BioSolutions Inc., a Delaware corporation (“Emergent”), in exchange for the outstanding shares of capital stock of Microscience Limited;
WHEREAS, BioPharm was the beneficial and record owner of 1,412,896 shares (the “BioPharm Shares”) of the Class A Common Stock of Emergent;
WHEREAS, upon completion of Emergent’s initial public offering, Microscience’s shares of Emergent Class A Common Stock were converted into 3,636,801 Shares of Emergent’s Common Stock, par value $0.001 per share (the “Microscience Shares”);
WHEREAS, Microscience and BioPharm entered into a Voting Agreement (the “Agreement”), dated August 11, 2006, whereby Microscience agreed to vote the Microscience Shares in the same manner and to the same extent as BioPharm (the Agreement incorrectly refers to BioPharm as a Delaware limited liability company but BioPharm has been a Maryland limited liability company at all times from and after the date of the Agreement);
WHEREAS, Microscience has undertaken a solvent liquidation, pursuant to which it proposes to distribute the Shares to the Investors, each in the allocable portions specified in Schedule A;
WHEREAS, in accordance with Section 7 of the Agreement and in connection with such distribution of the Shares, Microscience desires to assign its rights and obligations under the Agreement to the Investors and the Investors desire to assume such rights and obligations; and
WHEREAS, Microscience and the Investors desire to obtain BioPharm’s consent to the assignment and assumption of the Agreement and BioPharm is willing to consent to the assignment and assumption of the Agreement and the release of Microscience from its liability and obligations thereunder on the following terms and conditions.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Assignment. Microscience hereby transfers, assigns and conveys all of its interest in and rights under the Agreement to the Investors.
| 2. | Acceptance. The Investors hereby accept the foregoing assignment of the Agreement. |
3. Assumption. The Investors hereby assume and agree to perform the obligations of Microscience under the Agreement and acknowledge that upon the Effective Date, each of the Investors is bound by the terms of the Agreement; provided that the liability of each Investor pursuant to such assumption shall be several and not joint, and shall be limited to a fraction of the total liability in respect of such assumption equal to the pro rata portion of the Shares received by such Investor.
4. Consent. BioPharm hereby acknowledges and irrevocably consents in all respects to the foregoing Assignment and Assumption.
5. Release of Microscience. As of the Effective Date, BioPharm, on its own behalf, and on behalf of its affiliates, successors and assigns (collectively, the “Releasors”), do hereby fully, unconditionally and irrevocably forever release and discharge Microscience and its shareholders, directors, officers, successors, and assigns (other than the Investors) (collectively, the “Releasees”) of and from any and all liabilities, costs, damages, injuries, actions, rights, demands or claims and rights to any reimbursement, indemnification or other payment, costs or expenses (including, without limitation, all attorneys’ fees and expenses) it may have of any nature arising out of, concerning or relating to the Agreement and all matters connected therewith (collectively, the “Released Claims”). Each of the Releasors hereby further covenants and agrees, as of the Effective Date, never, individually or with any persons or entities, in any way, to commence, prosecute, cause or permit to be commenced or prosecuted, against the Releasees, any action or other proceeding based upon any Released Claim.
6. Successors and Assigns. The Assignment and Assumption shall be binding upon and inure to the benefit of each Party and their respective successors and assigns.
7. Amendments. This Assignment and Assumption may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by each of the parties hereto. However, any party may waive any condition to the obligations of any other party hereunder.
8. Governing Law. This Assignment and Assumption shall be construed and interpreted in accordance with and governed by the laws of the State of Delaware, without giving effect to any choice of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.
9. Notice. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand, facsimile or mail, certified or registered mail (return receipt requested) with postage prepaid:
If to BioPharm, to:
BioPharm, L.L.C.
3500 N. Martin Luther King, Jr. Blvd.
2
Building One, 3rd Floor
Lansing, MI 48906
Attn: Robert G. Kramer, Sr.
If to Microscience, to:
Microscience Investments Limited (in liquidation}
C/o BDO Stoy Hayward LLP
8 Baker Street
London
W1U 3LL
United Kingdom
Fax: +44 (0)20 7935 3944
If to the Investors, to:
To the addresses of the Investors as set forth on Schedule A attached hereto.
or to such other address as any party may have furnished to the others in writing in accordance herewith.
10. Counterparts and Facsimile Signature. This Assignment and Assumption may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Assignment and Assumption may be executed by facsimile signature.
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IN WITNESS WHEREOF, this Assignment and Assumption has been executed by the parties hereto as of the date first set forth above.
MICROSCIENCE INVESTMENTS LIMITED
(in liquidation)
By: | /s/ Malcolm Cohen |
| Name: | Malcolm Cohen |
| Title: | Liquidator, acting as agent of the Company and without personal liability |
BIOPHARM, L.L.C.
By:/s/ Robert G. Kramer |
Name: Robert G. Kramer |
Title: General Manager
THE INVESTORS:
THE ADVENT FUNDS
By: ADVENT VENTURE PARTNERS LLP, as manager of The Advent Funds
By: | /s/ Shahzad Malik |
| Name: | Shahzad Malik |
| Title: | General Partner |
MERLIN BIOSCIENCES FUND
By: MERLIN GENERAL PARTNER II LIMITED, as general partner of the Merlin Biosciences Fund LP and managing partner of the Merlin BioSciences Fund Gbr
By: | /s/ Denzil Boschat |
| Name: | Denzil Boschat |
| Title: | Director |
APAX WW NOMINEES LTD A/C AE4
By: | /s/ Paul Fitzsimons |
| Name: | Paul Fitzsimons |
| Title: | Director |
J.P. MORGAN PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS, L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS (CAYMAN), L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS A, L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS (CAYMAN) II, L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS (SELLDOWN), L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
J.P. MORGAN PARTNERS GLOBAL INVESTORS (SELLDOWN II), L.P.
By: JPMP GLOBAL INVESTORS, L.P., its general partner
| By: JPMP CAPITAL CORP, its general partner |
| By: Panorama Capital, LLC, as Attorney in Fact |
By: | /s/ Srinivas Akkaraju |
Name: Srinivas Akkaraju |
Title: Managing Director
SCHEDULE A
THE INVESTORS
Name | Allocable Shares |
Advent Private Equity Fund III ‘A’; Advent Private Equity Fund III ‘B’; Advent Private Equity Fund III ‘C’; Advent Private Equity Fund III ‘D’; Advent Private Equity Fund III GmbH & Co. KG; Advent Private Equity Fund III Affiliates; and Advent Management III Limited Partnership (together “the Advent Funds”) each acting by their manager,
ADVENT VENTURE PARTNERS LLP 25 Buckingham Gate London SW1E 6LD United Kingdom
|
468,355 229,497 64,018 125,921 18,118 15,098 4,530
|
APAX WW NOMINEES LTD A/C AE4 15 Portland Place London W1B 1PT United Kingdom
|
1,455,361 |
J.P. Morgan Partners (BHCA), L.P., acting by its general partner, JPMP Master Fund Manager, L.P. which in turn acts by its general partner, JPMP Capital Corp; |
415,381 |
J.P. Morgan Partners Global Investors, L.P.; | 94,399 |
J.P. Morgan Partners Global Investors (Cayman), L.P.; | 47,652 |
J.P. Morgan Partners Global Investors “A”, L.P.; | 13,689 |
J.P. Morgan Partners Global Investors (Cayman) II, L.P; | 5,320 |
J.P. Morgan Partners Global Investors (Selldown), L.P.; and | 33,714 |
J.P. Morgan Partners Global Investors (Selldown II), L.P. | 117,054 |
each of the aforementioned six entities acting by a general partner, JPMP Global Investors, L.P. which in turn acts by its general partner, JPMP Capital Corp.
JPMP Capital Corp. c/o J.P. Morgan Partners, LLC 270 Park Avenue New York, New York 10017 United States |
|
Merlin BioSciences Fund LP; acting by its general partner (as listed below) and Merlin BioSciences Fund GbR, (together the “Merlin BioSciences Fund”), acting by its managing partner
MERLIN GENERAL PARTNER II LIMITED La Motte Chambers La Motte Street St Helier Jersey JE1 1BJ |
498,722
29,972
|
