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EXHIBIT 1.1
5,000,000 SHARES
SANGAMO BIOSCIENCES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_____ __, 2000
XXXXXX BROTHERS INC.
CHASE SECURITIES INC.
ING BARINGS LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
NATIONAL FINANCIAL SERVICES CORPORATION
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Sangamo BioSciences, Inc., a Delaware corporation (the
"Company"), proposes to sell 5,000,000 shares (the "Firm Stock") of the
Company's common stock, par value $0.01 per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters named in Schedule 1
hereto (the "Underwriters") an option to purchase up to an additional 750,000
shares of the Common Stock on the terms and for the purposes set forth in
Section 3 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock." This is to confirm
the agreement concerning the purchase of the Stock from the Company by the
Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 with respect to
the Stock has (i) been prepared by the Company in conformity with
the requirements of the United States Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations of
the Commission (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. Copies of such
registration statement have been delivered by the Company to you
as the representatives (the "Representatives") of the
Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or
the
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most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the
date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments
thereof, before it became effective under the Securities Act and
any prospectus filed with the Commission by the Company with the
consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time,
including all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 5 hereof and deemed to be
a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Rules and Regulations. The Commission has
not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be,
conform in all respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statement and
any amendment thereto) and as of the applicable filing date (as
to the Prospectus and any amendment or supplement thereto)
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the
business in which it is engaged, except where the failure to so
qualify would not in the aggregate have a material adverse
effect; and the Company has no subsidiaries.
(d) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus.
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(e) The shares of the Stock to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid
and non-assessable; and the Stock will conform to the
descriptions thereof contained in the Prospectus.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the charter
or bylaws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets;
and except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
applicable state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby.
(h) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
(other than rights which have been waived or satisfied) to
require the Company, with respect to any securities of the
Company owned or to be owned by such person, to include such
securities in the securities registered pursuant to the
Registration Statement. Except as described in the Prospectus,
there are no contracts, agreements, or understandings between the
Company and any person granting such person the right to require
the Company to register securities or include such securities in
any other registration statement filed by the Company under the
Securities Act.
(i) Except as described in the Prospectus, the Company has
not sold or issued any shares of Common Stock during the
six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or S of,
the Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
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(j) The Company has not sustained, since the date of the
latest audited financial statements included in the Prospectus,
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock or long-term debt of the
Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus.
(k) The financial statements (including the related notes
and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly the
financial condition and results of operations of the Company, at
the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(l) Ernst & Young LLP, who have certified certain
financial statements of the Company, whose report appears in the
Prospectus and who have delivered the initial letter referred to
in Section 7(h) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(m) The Company has good and marketable title to all
personal property owned by it, in each case free and clear of all
liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made
and proposed to be made of such property by the Company; and all
real property and buildings held under lease by the Company are
held by it under valid, subsisting and enforceable leases, with
such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings
by the Company.
(n) The Company carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the
conduct of its respective businesses and the value of their
respective properties and as is customary for companies engaged
in similar businesses in similar industries.
(o) The Company owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights, know-how, manufacturing processes,
formulae, trade secrets, licenses and rights in any thereof and
any other intangible property and assets (herein called the
"Proprietary Rights") necessary to conduct its business in the
manner described in the Prospectus. The Company
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takes security measures to provide adequate trade secret
protection in its non-patented technology. Except as disclosed in
the Prospectus, the Company has not received any notice of
infringement or conflict with asserted rights of others with
respect to any Proprietary Rights which could result in any
material adverse effect on the Company, and except as described
in the Prospectus, no action, suit, arbitration, or legal,
administrative or other proceeding, or investigation is pending,
or, to the knowledge of the Company, is threatened, which
involves any Proprietary Rights. The Proprietary Rights of the
Company referred to in the Prospectus do not, to the best
knowledge of the Company, infringe or conflict with any right or
valid and enforceable patent of any third party, or any
discovery, invention, product or process which is the subject of
a patent application filed by any third party, known to the
Company which could have a material adverse effect on the
Company. The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local,
foreign or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, nor, except as described in the Prospectus, has it
entered into or is a party to any contract which restricts or
impairs the use of any such Proprietary Rights in a manner which
would have a material adverse effect on the use of any of the
Proprietary Rights. The Company has complied, in all material
respects, with its respective contractual obligations relating to
the protection of the Proprietary Rights used pursuant to
licenses. To the best knowledge of the Company, no person is
infringing on or violating the Proprietary Rights owned or used
by the Company.
(p) There are no legal or governmental proceedings pending
to which the Company is a party or of which any property or
assets of the Company is the subject which, if determined
adversely to the Company, might have a material adverse effect on
the financial position, stockholders' equity, results of
operations, business or prospects of the Company; and to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(q) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(r) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which
is not so described.
(s) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which
would reasonably be
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expected to have a material adverse effect on the financial
position, stockholders' equity, results of operations, business
or prospects of the Company.
(t) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA");
no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(u) The Company has filed all federal, state and local
income and franchise tax returns required to be filed through the
date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company which has
had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company, might
have) a material adverse effect on the financial position,
stockholders' equity, results of operations, business or
prospects of the Company.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise
be disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary
course of business or (iv) declared or paid any dividend on its
capital stock.
(w) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability
for its assets is compared with existing assets at reasonable
intervals.
(x) The Company is not (i) in violation of its charter or
bylaws, (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or
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observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is
subject or (iii) in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject. The Company has not
failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its
business where the failure to do so would have a material adverse
effect on the Company's business, financial condition, or results
of operations.
(y) Neither the Company, nor any director, officer, agent,
employee or other person associated with or acting on behalf of
the Company, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official
or employee from corporate funds; violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company (or, to the knowledge of the Company,
any of its predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
general affairs, management, financial position, stockholders'
equity, results of operations or prospects of the Company; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or with respect to
which the Company has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management,
financial position, stockholders' equity, results of operations
or prospects of the Company; and the terms "hazardous wastes",
"toxic wastes", "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to
environmental protection.
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(aa) The Company is not an "investment company" or
"controlled by investment company" within the meaning of such
terms under the Investment Company Act of 1940 and the Rules and
Regulations thereunder.
(bb) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than
those obtained, is required in connection with the offering of up
to ____________ shares of the Stock, which Xxxxxx has agreed to
reserve for sale to the Company's employees and persons having
business relationships with the Company.
2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 5,000,000 shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set opposite that Underwriter's name in Schedule 1 hereto. The respective
purchase obligations of the Underwriters with respect to the Firm Stock shall be
rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 750,000 shares of Option Stock. Such option is granted for the
purpose of covering over-allotments in the sale of Firm Stock and is exercisable
as provided in Section 4 hereof. Shares of Option Stock shall be purchased
severally for the account of the Underwriters in proportion to the number of
shares of Firm Stock set opposite the name of such Underwriters in Schedule 1
hereto. The respective purchase obligations of each Underwriter with respect to
the Option Stock shall be adjusted by the Representatives so that no Underwriter
shall be obligated to purchase Option Stock other than in 100 share amounts. The
price of both the Firm Stock and any Option Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to
be delivered on any Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Stock to be purchased on such Delivery Date as
provided herein.
3. Offering of Stock by the Underwriters. Upon authorization by
the Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
It is understood that _______ shares of the Firm Stock will
initially be reserved by the several Underwriters for offer and sale upon the
terms and conditions set forth in the Prospectus and in accordance with the
rules and regulations of the National Association of Securities Dealers, Inc. to
employees and persons having business relationships with the Company who have
heretofore delivered to the Representatives offers to purchase shares of Firm
Stock in form satisfactory to the Representatives, and that any allocation of
such Firm Stock among such persons will be made in accordance with timely
directions received by the Representatives from the Company; provided, that
under no circumstances will the Representatives or any Underwriter be liable to
the Company or to any such person for any action
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taken or omitted in good faith in connection with such offering to employees and
persons having business relationships with the Company. It is further understood
that any shares of such Firm Stock which are not purchased by such persons will
be offered by the Underwriters to the public upon the terms and conditions set
forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxxx, Xxxxxxx & Xxxxxxxx
LLP, Xxx Xxxxxx-Xxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 at 10:00
A.M., New York City time, on the [3rd or 4th] full business day following the
date of this Agreement or at such other date or place as shall be determined by
agreement between the Representatives and the Company. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery Date,
the Company shall deliver or cause to be delivered certificates representing the
Firm Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Firm Stock shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
The option granted in Section 2 will expire 30 days after the
date of this Agreement and may be exercised in whole or in part from time to
time by written notice being given to the Company by the Representatives. Such
notice shall set forth the aggregate number of shares of Option Stock as to
which the option is being exercised, the names in which the shares of Option
Stock are to be registered, the denominations in which the shares of Option
Stock are to be issued and the date and time, as determined by the
Representatives, when the shares of Option Stock are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the shares of
Option Stock are delivered are sometimes referred to as a "Second Delivery Date"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on such
Second Delivery Date. On such Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Option Stock shall
be registered in such names and in such denominations as the Representatives
shall request
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in the aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to such Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commission's close
of business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities
Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted
herein; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number
of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits other than
this Agreement and the computation of per share earnings) and
(ii) each Preliminary Prospectus, the Prospectus and any amended
or supplemented Prospectus; and, if the delivery of a prospectus
is required at any time after the Effective Time in connection
with the offering or sale of the Stock or any other securities
relating thereto and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
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they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities
Act, to notify the Representatives and, upon their request, to
file such amended or supplemental prospectus and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to
time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested
by the Commission;
(e) Prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing;
(f) As soon as practicable after the Effective Date to
make generally available to the Company's security holders and to
deliver to the Representatives an earnings statement of the
Company (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including,
at the option of the Company, Rule 158);
(g) For a period of five years following the Effective
Date, to furnish to the Representatives copies of all materials
furnished by the Company to its stockholders and all public
reports and all reports and financial statements furnished by the
Company to the principal national securities exchange upon which
the Common Stock may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete
the distribution of the Stock, provided that in connection
therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction;
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected
to,
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result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Stock and shares
issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans existing on the date
hereof or pursuant to currently outstanding options, warrants or
rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the grant of
options pursuant to option plans existing on the date hereof), or
(2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities,
in cash or otherwise, in each case without the prior written
consent of Xxxxxx Brothers Inc. and to cause each officer and
director of the Company and specified stockholders of the Company
to furnish to the Representatives, prior to the First Delivery
Date, a letter or letters, in form and substance satisfactory to
counsel for the Underwriters, pursuant to which each such person
shall agree not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or (2) enter into any swap
or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled
by delivery of Common Stock or other securities, in cash or
otherwise, in each case for a period of 180 days from the date of
the Prospectus, without the prior written consent of Xxxxxx
Brothers Inc. Notwithstanding the foregoing, each person may
transfer the Common Stock (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound by
the restrictions set forth herein or (ii) to any trust for the
direct or indirect benefit of each person or the immediate
family, provided that the trustee of the trust agrees to be bound
by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition for value.
(j) Prior to the Effective Date, to apply for the
inclusion of the Stock on the National Market System and to use
its best efforts to complete that listing, subject only to
official notice of issuance and evidence of satisfactory
distribution, prior to the First Delivery Date;
(k) To take such steps as shall be necessary to ensure
that the Company shall not become an "investment company" or
"controlled by" an investment company" within the meaning of such
terms under the Investment Company Act of 1940 and the Rules and
Regulations thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection;
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(b) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (c) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus, all as provided in this
Agreement; (d) the costs of producing and distributing this Agreement and any
other related documents in connection with the offering, purchase, sale and
delivery of the stock; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Stock; (f) any applicable listing or other fees; (g) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 5 and of preparing, printing and
distributing a Blue Sky Memorandum, which expenses shall not exceed $10,000
(including related fees and expenses of counsel to the Underwriters); (h) all
costs and expenses of the Underwriters, including the fees and disbursements of
counsel for the Underwriters, incident to the offer and sale of shares of the
Stock by the Underwriters to employees and persons having business relationships
with the Company, as described in Section 3; and (i) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that, except as provided in this Section 6 and in
Section 11 the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Stock which
they may sell and the expenses of advertising any offering of the Stock made by
the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to
the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which,
in the opinion of Xxxxxx & Xxxxxxx, counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Stock, the Registration
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Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects
to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx, Phleger & Xxxxxxxx LLP shall have furnished
to the Representatives its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of Delaware, is duly qualified to do business and
is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property
or the conduct of its business requires such
qualification, except where the failure to so qualify
would not in the aggregate have a material adverse effect
on the Company, and has all power and authority necessary
to own or hold its properties and to conduct the business
in which it is engaged; and the Company has no
subsidiaries;
(ii) The Company has an authorized capitalization
as set forth in the section entitled "Capitalization" in
the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectus;
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to
the Company's Amended and Restated Articles of
Incorporation or Bylaws, or, to such counsel's knowledge,
in any agreement or other instrument;
(iv) To such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a
party or of which any property or assets of the Company is
the subject which are required to be described in the
Prospectus by the Securities Act or the Rules and
Regulations and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b)
of the Rules and Regulations specified in such opinion on
the
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date specified therein and, to such counsel's knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such
counsel's knowledge, no proceeding for that purpose is
pending or threatened by the Commission;
(vi) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by
the Company prior to such Delivery Date (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(vii) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the
Rules and Regulations;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The issue and sale of the shares of Stock
being delivered on such Delivery Date by the Company, the
execution, delivery and compliance by the Company with all
of the provisions of this Agreement will not, whether with
or without the giving of notice or passage of time or
both, conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement, which done in the aggregate,
are material to the Company's business as described in the
Prospectus, or instrument known to such counsel to which
the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is
subject, nor will such actions result in any violation of
the provisions of the charter or bylaws of the Company or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of their properties
or assets except the securities or Blue Sky laws of the
various U.S. states; and, except for the registration of
the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or
registration with, any such court or governmental agency
or body is required for the execution, delivery and
performance of this Agreement, by the Company and the
consummation of the transactions contemplated hereby; and
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(x) To such counsel's knowledge, there are no
contracts, agreements or understandings between the
Company and any person granting such person the right
(other than rights which have been waived or satisfied) to
require the Company to include such securities in the
securities registered pursuant to the Registration
Statement with respect to any securities of the Company
owned or to be owned by such person. To such counsel's
knowledge, except as described in the Prospectus, there
are no contracts, agreements, or understandings between
the Company and any person granting such person the right
to require the Company to register or include securities
pursuant to any other registration statement filed by the
Company under the Securities Act.
(xi) The statements set forth in the Prospectus
under the headings "Description of Capital Stock", and
"Shares Eligible for Future Sale" and in the Registration
Statement under Item 14, to the extent such statements
constitute summaries of legal matters are accurate in all
material respects.
(xii) The statements contained in the Prospectus
under the captions "Management--Stock Plans," "Related
Party Transactions--Agreements with Officers and
Directors," insofar as they purport to constitute
summaries of contracts or other agreements, are accurate
in all material respects.
In addition, such counsel may state that it has participated in
conferences with certain officers and other representatives of
the Company, its independent public accountants and the
Underwriters at which the contents of the Registration Statement,
the Prospectus and related matters were discussed. Such counsel
may further specify that it is not, however, passing upon, and
does not assume any responsibility for, and has not independently
checked or verified, the accuracy, completeness or fairness of
the information contained in the Registration Statement and the
Prospectus (other than with respect to opinions (xi) and (xii)
above). Such counsel shall state, however, that based upon its
participation as described in the foregoing and its capacity as
counsel to the Company, (i) it confirms that it has no reason to
believe that (other than the consolidated financial statements,
including the notes and schedules thereto and the other financial
data included therein, as to which it need express no belief) at
the time the Registration Statement became effective, the
Registration Statement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (ii) it shall confirm that it has not reason to
believe that (except as to financial statements, including the
notes and schedules thereto, and the other financial data
included therein, as to which it need express no belief) the
Prospectus, as of its date of issue or on the date hereof,
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. In
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addition, such counsel may state that it is not an expert on
patent issues and they are not passing upon, and do not assume
any responsibility for, and they have not independently checked
or verified, the accuracy, completeness or fairness of the
information contained in the Prospectus with respect to such
issues.
(e) Xxxxxxxx and Xxxxxxxx and Crew LLP, shall have
furnished to the Representatives a written opinion, as
intellectual property counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives, to the effect
that they serve as intellectual property counsel to the Company
with respect to the Proprietary Rights, and that:
(i) Such counsel is familiar with the technology
used by the Company in its business and the manner of its
use thereof and has read the Registration Statement and
the Prospectus, including particularly the portions of the
Registration Statement and the Prospectus under the
captions "Risk Factors--Because it is difficult and costly
to protect our proprietary rights, we cannot ensure their
protection," "Business--Intellectual Property and
Technology Licenses," and "Business-- Corporate
Collaborations-- Universal GeneTools Collaborations," (the
"Patent Information"). Such counsel has considered the
statements contained therein, although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements. Based upon and subject to the
foregoing, nothing has come to such counsel's attention,
as of the date of the Prospectus and the date hereof, that
leads such counsel to believe that the "Patent
Information" contains an untrue statement of a material
fact or omits to state a material fact in light of the
circumstances in which they are made. As of the date of
the Prospectus and the date hereof, such counsel has no
reason to believe that the "Patent Information" is not in
all material respects a fair and accurate summary of the
legal matters, documents and proceedings relating thereto.
(ii) Attached as Schedule A to such opinion is a
list of the Company's U.S. patents and pending U.S. patent
applications (the "U.S. Patent Rights") which, to the best
of such counsel's knowledge, are owned by the Company, as
indicated on such Schedule A. To the best of such
counsel's knowledge, where the Company is listed on
Schedule A to such opinion as the owner of any U.S. Patent
Right, either (a) an assignment from the inventor(s) to
the Company has been recorded in the United States Patent
and Trademark Office, or (b) the inventor(s) are under
obligation of assignment to the Company, and an assignment
will be recorded in the United States Patent and Trademark
Office. To the best of such counsel's knowledge, there are
no claims to any ownership interests or liens on any of
the U.S. Patent Rights by any party other than the
Company.
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(iii) Attached as Schedule B to such opinion is a
list of the Company's non-U.S. patents and pending
non-U.S. patent applications (the "Non-U.S. Patent
Rights") which, to the best of such counsel's knowledge,
are owned by the Company, as indicated on such Schedule B.
To the best of such counsel's knowledge, where the Company
is listed on Schedule B to such opinion as the owner or
co-owner(s) of any Non-U.S. Patent Right, the named
inventors of the Non-U.S. Patent Rights have either (a)
executed an assignment to the Company, or (b) are under an
obligation to execute an assignment to the Company. To the
best of such counsel's knowledge, there are no claims to
any ownership interests or liens on any of the Non-U.S.
Patent Rights by any party other than the Company.
(iv) Attached as Schedule C to such opinion is a
list of the U.S. and non-U.S. patents and pending patent
applications which, to the best of such counsel's
knowledge, the Company has licensed the rights to use (the
"Licensed Patent Rights"). To the best of such counsel's
knowledge, the Licensed Patent Rights cover fields of use
necessary to conduct business in the manner described in
the Registration Statement and the Prospectus, as
indicated on such Schedule C except that licensed patent
rights from Scripps do not include Agricultural
Biotechnology. To the best of such counsel's knowledge,
other than as set forth in the Prospectus, there are no
claims by any third parties that the Company lacks
adequate rights in any of the Licensed Patent Rights.
(v) Such counsel has reviewed portions of certain
patent estates, as set forth in Schedules A, B and C of
such opinion, and is unaware of any facts that would lead
it to believe that: (a) any of the patents are invalid,
(b) any patent issued in respect of a patent application
would be invalid, or (c) any material defects exist in
respect of form in the preparation of filing of any of the
patent applications.
(vi) To the best of such counsel's knowledge, for
each of the U.S. patents applications filed and prosecuted
by such counsel reflected in Schedule D to such opinion,
the Company has disclosed or intends to disclose to the
United States Patent and Trademark Office all information
know and believed to be material to patentability under
the extant 37 C.F.R. Section 1.56.
(vii) Other than the disclosures set forth in the
Prospectus, to the best of such counsel's knowledge, the
Company has not received any claim of infringement of any
patents held by others, and to the best of such counsel's
knowledge, there is no pending or threatened action, suit,
proceeding or claim by others that the Company is
infringing a patent. Except as generally described in the
Prospectus, nothing has come to such counsel's attention
that has led such counsel to believe that any patents of
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others are infringed by the present or future business of
the Company as described in the Prospectus under the
caption "Business."
(viii) To the best of our knowledge, there are no
pending or threatened legal or governmental proceedings
relating to the U.S. patents and pending U.S. patent
applications reflected in Schedule A, other than
proceedings before the United States Patent and Trademark
Office that are carried out during the course of
prosecution.
With respect to the opinions expressed herein, such
counsel has assumed the genuineness of all signatures on
original, certified or facsimile copies, the authenticity
of all items submitted to such counsel as originals and
the conformity with originals of all items submitted to us
as reproduction or certified copies. In examining
documents executed by entities other than the Company,
such counsel has assumed that each other entity has the
power and authority to execute and deliver, and to perform
and observe the provisions of such documents, and the due
authorization by each such entity of all requisite action
and the due execution and delivery of such documents by
each such entity. Such counsel expresses no opinion with
regard to the enforceability of any license agreements or
assignments nor with regard to intervening assignments.
(f) Xxxx Xxxx Xxxx & Freidenrich LLP, shall have furnished
to the Representatives a written opinion, as special intellectual
property counsel to the Company, addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives regarding the section of the
Prospectus entitled "Business-- Corporate Collaborations--Xxxxxx
CardioVascular Group Strategic Partnership.
(g) The Representatives shall have received from Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale
of the Stock, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a
letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the date
hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is
given in the Prospectus, as of a date
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not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(i) With respect to the letter of Ernst & Young referred
to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date
not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and its
chief financial officer stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of
such Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth
in Sections 7(a) and 7(l) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as
of the Effective Date, the Registration Statement and
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
(k) The Company shall not have sustained since the date of
the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there
shall not have been any change in the capital stock or long-term
debt of the Company or any change, or any development involving a
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prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity, results of
operations or prospects of the Company, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a
declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering
or delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(m) The National Market System shall have approved the
Stock for inclusion, subject only to official notice of issuance
and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to Xxxxxx & Xxxxxxx, counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any,
who controls any Underwriter within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Stock), to which that Underwriter,
officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact
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contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto, (B) in any blue sky application or other document
prepared or executed by the Company (or based on any written
information furnished by the Company) specifically for the
purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such
application, document, or information being hereinafter called a
"Blue Sky Application"), or (C) in any materials or information
provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Stock
("Marketing Materials"), including any roadshow or investor
presentations made to investors by the Company (whether in person
or electronically), (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or
in any Blue Sky Application or Marketing Materials any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Company shall not be liable under
this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by
such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such
officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein which information
consists solely of the information specified in Section 8(e). The
foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and
employees, each of its directors and each person, if any, who
controls the Company within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company
or any such
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director, officer or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii)
the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically
for inclusion therein, and shall reimburse the Company and any
such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters
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against the Company under this Section 8 if, in the reasonable
judgment of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and
controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from
the offering of the Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds
from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company, on the one
hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of the
Stock purchased under this Agreement, on the other hand, bear to
the total gross proceeds from the offering of the shares of the
Stock under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by the Company
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or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this
Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public
offering of the Stock by the Underwriters set forth on the cover
page of, the legend concerning over-allotments on the inside
front cover page of and the concession and reallowance figures
appearing under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
9. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Stock
on such Delivery Date if the total number of shares of the Stock which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of shares of the Stock to be purchased on
such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 3.
If the
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foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other Underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Stock to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Firm Stock which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(k) or 7(l), shall have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 9 by reason
of the default of one or more Underwriters, the Company shall not be obligated
to reimburse any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 212-526-
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6588), with a copy to Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxxx Xxxxx,
Xxxxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx (Fax:
714-755-8290), and, in the case of any notice pursuant to Section
8(d), to the Director of Litigation, Office of the General
Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxx X.
Xxxxxxxx XX (Fax: 000-000-0000);
provided, however, that any notice to an Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of the
Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations .
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16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Each party irrevocably agrees that any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York in each case located in the Borough of Manhattan
in the City of New York (collectively, the "Specified Courts"), and irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. The parties further agree that service of
any process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any lawsuit, action or
other proceeding brought in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any lawsuit,
action or other proceeding in the Specified Courts, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such lawsuit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
SANGAMO BIOSCIENCES, INC.,
By
---------------------------------
Xxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
Accepted:
XXXXXX BROTHERS INC.
CHASE SECURITIES INC.
ING BARINGS LLC
XXXXXXX XXXXX & COMPANY, LLC
NATIONAL FINANCIAL SERVICES CORPORATION
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By
-------------------------------------
Authorized Representative
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SCHEDULE 1
Number of
Underwriters Shares
------------ ------------
Xxxxxx Brothers Inc...................................................
Chase Securities Inc..................................................
ING Barings LLC.......................................................
Xxxxxxx Xxxxx & Company, L.L.C........................................
Fidelity Capital Markets, a division of
National Financial Services Corporation........................
---------
Total
=========
