10,810,811 Units CELL GENESYS, INC. PLACEMENT AGENCY AGREEMENT
Exhibit 1.1
10,810,811 Units
CELL GENESYS, INC.
April 11, 2007
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxx & Company, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Canaccord Xxxxx Inc.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Cantor Xxxxxxxxxx & Co.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Cell Genesys, Inc., a Delaware corporation (the “Company”), proposes,
pursuant to the terms of this Placement Agency Agreement (this “Agreement”) and the Subscription
Agreements in the form of Exhibit A attached hereto (the “Subscription Agreements”) entered
into with the purchasers identified therein (each a “Purchaser” and collectively, the
“Purchasers”), to sell to the Purchasers an aggregate of 10,810,811 units (the “Units”) with each
Unit consisting of (i) one share (the “Share,” collectively, the “Shares”) of common stock, par
value $0.001 per share (the “Common Stock”) of the Company and (ii) one warrant to purchase 0.20
shares of Common Stock (the “Warrant,” collectively, the “Warrants”). The terms and conditions of
the Warrants are set forth in the form of Exhibit B attached hereto. The Company hereby
confirms its agreement with Credit Suisse Securities (USA) LLC (“Credit Suisse”) to act as lead
placement agent and with Xxxxxxx & Company, LLC (“Xxxxxxx”), Canaccord Xxxxx Inc. (“Canaccord”) and
Cantor Xxxxxxxxxx & Co. (“Cantor”) to act as co-placement agents (Credit Suisse, Xxxxxxx, Canaccord
and Cantor, the “Placement Agents”) in accordance with the terms and conditions hereof as set forth
below.
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2. Agreement to Act as Placement Agents; Placement of Units. On the basis of the
representations, warranties and agreements of the Company herein contained, and subject to all the
terms and conditions of this Agreement:
(a) The Company engages the Placement Agents to act as its exclusive agents, on a
best efforts basis, in connection with the issuance and sale by the Company of the
Units (the “Offering”). Until the Closing Date (defined below), the Company shall not,
without the prior consent of Credit Suisse, solicit or accept offers to purchase Units
otherwise than through the Placement Agents.
(b) Under no circumstances will the Placement Agents be obligated to purchase any
Units for their own account and, in soliciting purchases of Units, the Placement Agents
shall act solely as the Company’s agents and not as principals. Notwithstanding the
foregoing and except as otherwise provided in Section 2(c), it is understood and agreed
that the Placement Agents (or their affiliates) may, solely at their discretion and
without any obligation to do so, purchase Units as principals to the extent any such
purchase of Units is properly disclosed in the General Disclosure Package in the manner
required by the Securities Laws.
(c) Subject to the provisions of this Section 2, offers for the purchase of Units
may be solicited by the Placement Agents as agents for the Company at such times and in
such amounts as the Placement Agents deem advisable. The Placement Agents shall
communicate to the Company, orally or in writing, each reasonable offer to purchase
Units received by it as agents of the Company. The Company shall have the sole right to
accept offers to purchase the Units and may reject any such offer, in whole or in part.
The Placement Agents shall have the right, in their discretion reasonably exercised,
without notice to the Company, to reject any offer to purchase Units received by it, in
whole or in part, and any such rejection shall not be deemed a breach of their agreement
contained herein.
(d) The purchases of the Units by the Purchasers shall be evidenced by the
execution of Subscription Agreements by each of the parties thereto.
(e) As compensation for services rendered, on the Closing Date, the Company shall
pay to the Placement Agents by wire transfer of immediately available funds to an
account or accounts designated by the Placement Agents, an aggregate amount equal to
seven percent (7%) of the gross proceeds received by the Company from the sale of the
Units on such Closing Date (such aggregate amount to be divided among the Placement
Agents as they so agree). At the Closing, the Company shall direct the Escrow Agent
(defined below) to wire to an account or accounts designated by the Placement Agents
such amounts out of the Escrow Funds (defined below).
(f) No Units which the Company has agreed to sell pursuant to this Agreement shall
be deemed to have been purchased and paid for, or sold by the Company, until such Units
shall have been delivered to the Purchaser thereof against
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payment by such Purchaser. If the Company shall default in its obligations to deliver
Units to a Purchaser whose offer it has accepted, the Company shall indemnify and hold
the Placement Agents harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
3. Delivery and Payment.
(a) Concurrently with the execution and delivery of this Agreement, the Company,
the Placement Agents and JPMorgan Bank, N.A., as escrow agent (the “Escrow Agent”),
shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an
escrow account (the “Escrow Account”) will be established for the benefit of the Company
and the Purchasers. Prior to the completion of the purchase and sale of the Units
pursuant to this Agreement and the Subscription Agreements (the “Closing”), each such
Purchaser shall deposit into the Escrow Account an amount equal to the product of (x)
the number of Units such Purchaser has agreed to purchase and (y) the purchase price per
Unit determined by the Subscription Agreements (the “Purchase Amount”). The aggregate
of such Purchase Amounts is herein referred to as the “Escrow Funds”. On the Closing
Date, upon satisfaction or waiver of all of the conditions to Closing, the Escrow Agent
will disburse the Escrow Funds to the Company and the Placement Agents as provided in
the Escrow Agreement and Section 2(e) above, and the Company shall cause the Units to be
delivered to the Purchasers.
(b) Subject to the terms and conditions hereof, delivery of the Units shall be
made by the Company to the Purchasers, and payment of the purchase price shall be made
by the Purchasers, at the office of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional
Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (or at such other place as
agreed upon by the Placement Agents and the Company), at 10:00 a.m., New York City time,
on or before April 16, 2007 or at such time on such other date as may be agreed upon in
writing by the Company and Credit Suisse but in no event prior to the date on which the
Escrow Agent shall have received all of the Escrow Funds (such date of delivery and
payment is hereinafter referred to as the “Closing Date”). The Shares shall be
delivered, through the facilities of The Depository Trust Company, to such persons, and
shall be registered in such name or names and shall be in such denominations, as the
Placement Agents may request by written notice to the Company at least one business day
before the Closing Date. The cost of original issue tax stamps and other transfer
taxes, if any, in connection with the issuance and delivery of the Units by the Company
to the respective Purchasers shall be borne by the Company.
4. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the Placement Agents that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No.
333-102122) and a registration statement on Form S-3 dated April 11, 2007 filed pursuant
to Rule 462(b) of the Act, including a related prospectus or
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prospectuses, covering the registration of the Units under the Act, which registration statement has
become effective. “Registration Statement” at any particular time means such
registration statement in the form then filed with the Commission, including any
amendment thereto, any document incorporated by reference therein and all 430B
Information or all 430C Information with respect to such registration statement, that in
any case has not been superseded or modified. “Registration Statement” without
reference to a time means the Registration Statement as of the Effective Date. For
purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of
the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of
the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of
the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 5:00 a.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Date” of the Registration Statement relating to the Units means the earlier of
(a) first use of the Final Prospectus and (b) the time of the first contract of sale for the
Units.
“Exchange Act” means the Securities Exchange Act of 1934.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price,
other 430B Information and other final terms of the Units and otherwise satisfies Section
10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is intended for general distribution to prospective investors, as evidenced by its being so
specified in Schedule A to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433, relating to the Units in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records
pursuant to Rule 433(g).
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“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”),
the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx)
promulgated or approved by the Public Company Accounting Oversight Board and, as applicable,
the rules of the New York Stock Exchange and The NASDAQ Stock Market (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus relating
to the Units that is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and all 430B Information and all
430C Information with respect to the Registration Statement. For purposes of the foregoing
definition, 430B Information shall be considered to be included in the Statutory Prospectus
only as of the actual time that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) on the
Effective Date relating to the Units and (D) on the Closing Date, the Registration
Statement conformed and will conform in all material respects to the requirements of the
Act and the Rules and Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at
the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing
Date, the Final Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from
any such document based upon written information furnished to the Company by the
Placement Agents, if any, specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 8(b) hereof.
(c) Shelf Registration Statement. The date of this Agreement is not more than
three years subsequent to the more recent of the initial effective date of the
Registration Statement or December 1, 2005. If, immediately prior to the third
anniversary of the more recent of the initial effective date of the Registration
Statement
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or December 1, 2005, any of the Units remain unsold by the Placement Agents, the Company
will prior to that third anniversary file, if it has not already done so, a new shelf
registration statement relating to the Units, in a form satisfactory to the Placement
Agents, will use its best efforts to cause such registration statement to be declared
effective within 180 days after that third anniversary, and will take all other action
necessary or appropriate to permit the public offering and sale of the Units to continue
as contemplated in the expired registration statement relating to the Units. References
herein to the Registration Statement shall include such new shelf registration
statement.
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Units and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405, including (x) the Company or any other subsidiary in the preceding three
years not having been convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as described in Rule 405 and (y)
the Company in the preceding three years not having been the subject of a bankruptcy
petition or insolvency or similar proceeding, not having had a registration statement be
the subject of a proceeding under Section 8 of the Act and not being the subject of a
proceeding under Section 8A of the Act in connection with the offering of the Units, all
as described in Rule 405.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus supplement, dated April 10, 2007, together with the accompanying
prospectus (which is the most recent Statutory Prospectus distributed to investors
generally) and any other documents listed or disclosures stated in Schedule A to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished
to the Company by the Placement Agents specifically for use therein, it being understood
and agreed that the only such information furnished by the Placement Agents consists of
the information described as such in Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of
its issue date and at all subsequent times through the completion of the public offer
and sale of the Units or until any earlier date that the Company notified or notifies
the Placement Agents as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following
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issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information then contained in the Registration Statement or as a
result of which such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will promptly notify the Placement
Agents and (ii) the Company has promptly amended or will promptly amend or supplement
such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by the Placement Agents specifically
for use therein, it being understood and agreed that the only such information furnished
by the Placement Agents consists of the information described as such in Section 8(b)
hereof.
(g) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or be in good
standing would not materially and adversely affect the Company or its businesses,
properties, business prospects, conditions (financial or other) or results of
operations, taken as a whole (such effect is referred to herein as a “Material Adverse
Effect”).
(h) Subsidiaries. The Company has no subsidiary that is a “significant subsidiary”
of the Company within the meaning of Rule 1.01 of Regulation S-X of the Rules and
Regulations.
(i) Capital Stock. The Shares to be issued and sold by the Company to the
Purchasers hereunder and under the Subscription Agreements and the shares of Common
Stock issuable upon exercise of the Warrants (the “Warrant Shares”) and all other
outstanding shares of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the Shares of Common
Stock have been delivered and paid for in accordance with this Agreement and the
Subscription Agreements on the Closing Date and the Warrant Shares have been delivered
and paid for in accordance with the Warrants, such shares will have been validly issued,
fully paid and nonassessable, will conform to the information in the General Disclosure
Package and to the description of such shares contained in the Final Prospectus; the
stockholders of the Company have no statutory or contractual preemptive rights with
respect to its Common Stock; none of the outstanding shares of capital stock of the
Company are or will have been issued in violation of any statutory
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or contractual preemptive rights of any security holder; and the authorized equity
capitalization of the Company is as set forth in the General Disclosure Package.
(j) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or the Placement Agents for a
brokerage commission, finder’s fee or other like payment.
(k) Financial Statements. The financial statements and schedules included or
incorporated by reference in the Registration Statement and the General Disclosure
Package present fairly the financial condition of the Company and its consolidated
subsidiaries as of the respective dates thereof and the results of operations and cash
flows of the Company and its consolidated subsidiaries for the respective periods
covered thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis throughout the entire period involved, except as otherwise
disclosed in the General Disclosure Package. No other financial statements or schedules
of the Company are required by the Act, the Exchange Act, or the Rules and Regulations
to be included in the Registration Statement or the General Disclosure Package. Ernst &
Young LLP (“Accountants”), who have reported on such financial statements and
schedules, are independent accountants with respect to the Company as required by the
Act and the Rules and Regulations and Rule 3600T of the Public Company Accounting
Oversight Board (“PCAOB”). The summary and selected consolidated financial and
statistical data included in the Registration Statement present fairly the information
shown therein and have been compiled on a basis consistent with the audited financial
statements presented in the Registration Statement.
(l) Absence of Changes. Subsequent to the respective dates as of which information
is given in the Registration Statement and the General Disclosure Package and prior to
or on the Closing Date, except as set forth in or contemplated by the Registration
Statement and the General Disclosure Package, (i) there has not been and will not have
been any change in the capitalization of the Company (other than in connection with the
grant or exercise of options to purchase the Common Stock granted pursuant to the
Company’s stock option plans from the shares reserved therefor, the conversion of
convertible debt outstanding on the date hereof into shares of Common Stock or the
issuance of shares under the Company’s existing employee stock purchase plan as
described in the Registration Statement), or any Material Adverse Effect arising for any
reason whatsoever, (ii) the Company has not incurred and will not incur, except in the
ordinary course of business as described in the General Disclosure Package, any material
liabilities or obligations, direct or contingent, the Company has not entered into and
will not enter into, except in the ordinary course of business as described in the
General Disclosure Package, any material transactions other than pursuant to this
Agreement and the transactions referred to herein and (iii) the Company has not and will
not have paid or declared any dividends or other distributions of any kind on any class
of its capital stock.
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(m) Not An Investment Company. The Company is not, will not become as a result of
the transactions contemplated hereby, an “investment company” or an “affiliated person”
of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended.
(n) Litigation. Except as disclosed in the General Disclosure Package, there are
no actions, suits or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or against any of its officers in their capacity as
such, before or by any federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding would reasonably be expected to have a Material
Adverse Effect.
(o) Absence of Existing Defaults and Conflicts. The Company is not (i) in
violation of any provision of its certificate of incorporation or bylaws, (ii) in
default in any 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 observance of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject, or (iii) in
violation in any respect of any statute, law, rule, regulation, ordinance, judgment,
order or decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
properties, as applicable, except, with respect to clauses (ii) and (iii), any
violations or defaults which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(p) Absence of Further Requirements. No consent, approval, authorization or order
of, or any filing or declaration with, any court or governmental agency or body is
required for the consummation by the Company of the transactions on its part
contemplated herein, the Subscription Agreements, the Warrants or Escrow Agreement,
including the offering and sale of the Units, except such as have been obtained under
the Act or the Rules and Regulations and such as may be required under state securities
or Blue Sky laws or the bylaws and rules of the National Association of Securities
Dealers, Inc. (“NASD”) in connection with the offering of the Units.
(q) Authorization; Absence of Defaults and Conflicts Resulting from Transaction.
The Company has full corporate power and authority to enter into this Agreement, each of
the Subscription Agreements, each of the Warrants and the Escrow Agreement. Each of
this Agreement, the Subscription Agreements, the Warrants and the Escrow Agreement has
been duly authorized, executed and delivered by the Company. The Subscription
Agreements, the Warrants and the Escrow Agreement are valid and binding agreements of
the Company, enforceable against the Company in accordance with their respective terms.
The performance of each of this Agreement,
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each Subscription Agreement, each Warrant and the Escrow Agreement and the consummation
of the transactions contemplated hereby and thereby, will not (i) result in the creation
or imposition of any lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms or provisions of, or result in a breach or violation of any of the
terms or provisions of, or conflict with or constitute a default under, or give any
party a right to terminate any of its obligations under, or result in the acceleration
of any obligation under, (A) the certificate of incorporation or bylaws of the Company,
or (B) any indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company is a party or by which the Company or
any of its properties is bound or affected, except, in the case of clause (i)(B), any
lien, breach, violation, conflict, default or acceleration that, would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (ii)
violate or conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to the business
or properties of the Company.
(r) Title to Property. The Company has good and marketable title to all properties
and assets described in the General Disclosure Package as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except such as are described in the
General Disclosure Package or are not material to the business of the Company. The
Company has valid, subsisting and enforceable leases for the properties described in the
General Disclosure Package as leased by it. The Company owns or leases all such
properties as are necessary to its operations as now conducted or as proposed to be
conducted, except where the failure to so own or lease would not reasonably be expected
to have a Material Adverse Effect.
(s) Off Balance Sheet Interests and Contracts. There is no document, contract,
permit or instrument, affiliate transaction or off-balance sheet transaction (including,
without limitation, any “variable interests” in “variable interest entities,” as such
terms are defined in Financial Accounting Standards Board Interpretation No. 46) of a
character required to be described in the Registration Statement or the General
Disclosure Package or to be filed as an Exhibit to the Registration Statement that is
not described or filed as required. All such contracts described in the immediately
preceding sentence to which the Company is a party have been duly authorized, executed
and delivered by the Company, constitute valid and binding agreements of the Company and
are enforceable against and by the Company in accordance with the terms thereof.
(t) Accuracy of Statements. No statement, representation, warranty or covenant
made by the Company in this Agreement or any Subscription Agreement or made in any
certificate or document required by Section 7 of this Agreement to be delivered to the
Placement Agents was or will be, when made, inaccurate, untrue or incorrect in any
material respect.
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(u) Offering Material; Stabilization. The Company has not distributed, and will
not distribute prior to the Closing Date, any offering material in connection with the
offering and sale of the Units other than any preliminary prospectuses, any Permitted
Free Writing Prospectus (as defined in Section 6 below), the Final Prospectus, the
Registration Statement and other materials, if any, permitted by the Act. Neither the
Company nor any of its directors, officers or controlling persons has taken, directly or
indirectly, any action designed, or that might reasonably be expected, to cause or
result, under the Act or otherwise, in, or that has constituted, stabilization or
manipulation of the price of any security of the Company to facilitate the sale or
resale of the Units.
(v) Registration Rights. No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the Registration
Statement, which rights have not been waived by the holder thereof as of the date
hereof.
(w) Listing. The Common Stock is registered under Section 12(g) of the Exchange
Act and the Shares and Warrant Shares have been approved for listing on the NASDAQ
Global Market, subject to notice of issuance.
(x) Possession of Intellectual Property. Except as disclosed in or specifically
contemplated by the General Disclosure Package, (i) the Company owns or has adequate
rights to use all trademarks, trade names, domain names, patents, patent rights,
copyrights, technology, know-how (including trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or procedures), service
marks, trade dress rights, and other intellectual property (collectively, “Intellectual
Property”) and has such other licenses, approvals and governmental authorizations, in
each case sufficient to conduct its business as now conducted and as now proposed to be
conducted, and to the Company’s knowledge, none of the foregoing Intellectual Property
rights owned or licensed by the Company is invalid or unenforceable, (ii) the Company
has no knowledge of any infringement by it of Intellectual Property rights of others,
where such infringement could reasonably be expected to have a Material Adverse Effect,
(iii) the Company is not aware of any infringement, misappropriation or violation by
others of, or conflict by others with rights of the Company with respect to, any
Intellectual Property that could reasonably be expected to have a Material Adverse
Effect, (iv) there is no claim being made against the Company or, to the best knowledge
of the Company, any employee of the Company, regarding Intellectual Property or other
infringement that could reasonably be expected to have a Material Adverse Effect, and
(v) the Company has not received any notice of infringement with respect to any patent
or any notice challenging the validity, scope or enforceability of any Intellectual
Property owned by or licensed to the Company, in each case the loss of which patent or
Intellectual Property (or loss of rights thereto) would have a Material Adverse Effect.
(y) Taxes. The Company has filed all federal, state, local and foreign income tax
returns that have been required to be filed and has paid all taxes and
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assessments received by it to the extent that such taxes or assessments have become due.
Except as disclosed in the General Disclosure Package, the Company has no tax
deficiency that has been or, to the best knowledge of the Company, might be asserted or
threatened against it that could reasonably be expected to have a Material Adverse
Effect.
(z) Permits and Licenses. The Company owns or possesses all authorizations,
approvals, orders, licenses, registrations, other certificates and permits of and from
all governmental regulatory officials and bodies, necessary to conduct its businesses as
contemplated in the General Disclosure Package, except where the failure to own or
possess all such authorizations, approvals, orders, licenses, registrations, other
certificates and permits would not reasonably be expected to have a Material Adverse
Effect. There is no proceeding pending or threatened (or any basis therefor known to
the Company) that may cause any such authorization, approval, order, license,
registration, certificate or permit to be revoked, withdrawn, cancelled, suspended or
not renewed; and the Company is conducting its business in compliance with all laws,
rules and regulations applicable thereto, except where such noncompliance would not
reasonably be expected to have a Material Adverse Effect.
(aa) FCPA Compliance. The Company has not and, to the best of the Company’s
knowledge, none of its employees or agents at any time during the last five years have
(i) made any unlawful contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law, or (ii) made any payment to any
federal or state governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof.
(bb) Internal Controls and Compliance With Xxxxxxxx-Xxxxx Act. The books, records
and accounts of the Company accurately and fairly reflect in all material respects, in
reasonable detail, the transactions in, and dispositions of, the assets of, and the
results of operations of, the Company. The principal executive officer and principal
financial officer of the Company have made all certifications required by Sections 302
and 906 of Xxxxxxxx-Xxxxx and the rules and regulations promulgated in connection
therewith with respect to all reports, schedules, forms, statements and other documents
required to be filed by it with the Commission, and the statements contained in any such
certification are complete and correct. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings
given to such terms in Xxxxxxxx-Xxxxx. The Company maintains (x) systems of internal
accounting controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of the Company’s
consolidated financial statements in accordance with generally accepted accounting
principles and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable
intervals and
12
appropriate action is taken with respect to any differences, and (y) disclosure controls
and procedures (as defined in Rule 13a-14(c) under the Exchange Act).
(cc) ERISA Compliance. The Company has fulfilled in all material respects its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and
published interpretations thereunder with respect to each “plan” (as defined in Section
3(3) of ERISA and such regulations and published interpretations) in which employees of
the Company are eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and such regulations
and published interpretations. No “prohibited transaction” (as defined in Section 406
of ERISA, or Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time (the “Code”)) has occurred with respect to any employee benefit plan which would
reasonably be expected to result in a Material Adverse Effect.
(dd) Labor Issues. No labor problem or dispute with the employees of the Company
exists or, to the Company’s knowledge, is threatened or imminent, which would reasonably
be expected to result in a Material Adverse Effect. The Company is not aware that any
key employee or significant group of employees of the Company plans to terminate
employment with the Company.
(ee) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference in the Registration Statement,
a Statutory Prospectus or the General Disclosure Package are based on or derived from
sources that the Company believes to be reliable and accurate.
(ff) Forward-Looking Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in
the Registration Statement and the General Disclosure Package has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(gg) Environmental Laws. The Company (i) is in compliance with any and all
applicable federal, state, local and foreign laws, rules, regulations, decisions and
orders relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (ii) has received and is in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct its
business; and (iii) has not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except in the case of subsections (i), (ii) and
(iii) of this subsection (gg) as would not, individually or in the aggregate, have a
Material Adverse Effect.
13
(hh) Regulatory Authorizations. The Company possesses all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business as described in the General
Disclosure Package, including without limitation all such certificates, authorizations
and permits required by the United States Food and Drug Administration (the “FDA”) or
any other federal, state or foreign agencies or bodies engaged in the regulation of
pharmaceuticals or biohazardous materials, except where the failure to possess such
certificates, authorizations and permits would not, individually or in the aggregate,
have a Material Adverse Effect; and the Company has not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, if the subject of an unfavorable decision, ruling or
finding, would individually or in the aggregate have a Material Adverse Effect.
(ii) Conduct of Clinical Trials. The studies, tests and preclinical and clinical
trials conducted by or on behalf of the Company that are described in the General
Disclosure Package were and, if still pending, are being conducted in compliance with
all applicable current Good Laboratory Practices and Good Clinical Practices in all
material respects. The descriptions of the studies, tests and preclinical and clinical
trials, including the related results and regulatory status, contained in the General
Disclosure Package are accurate in all material respects. Except as described in the
General Disclosure Package, the Company has not received any notices, correspondence or
other communication from the FDA or other governmental agency requiring the termination
or suspension of any clinical trials conducted by, or on behalf of, the Company or in
which the Company has participated.
(jj) Business of Subsidiaries. Except as disclosed in the General Disclosure
Package, none of the Company’s subsidiaries owns any assets, has any liabilities or
conducts any business.
(kk) Exemption From NASD Filing. As of the date of this Agreement and the date of
the Registration Statement, the Company satisfies the eligibility requirements in
existence prior to October 21, 1992 for the use of a registration statement on Form S-3
for the offering of the Units.
5. Certain Agreements of the Company. The Company agrees with the Placement Agents
that it will furnish to counsel for the Placement Agents one copy of the registration statement
relating to the Units, including all exhibits, in the form it became effective and of all
amendments thereto and that, in connection with the offering of Units:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule
424(b)(2) (or, if applicable and consented to by the Placement Agents, subparagraph (5))
not later than the second business day following the earlier of the date it is first
used or the date of this Agreement. The Company has complied and will comply with Rule
433.
14
(b) Filing of Amendments; Response to Commission Requests. The Company will
promptly advise the Placement Agents of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus until the completion of the purchase
and sale of the Units contemplated herein and will afford the Placement Agents a
reasonable opportunity to comment on any such proposed amendment or supplement; and the
Company will also advise the Placement Agents promptly of (i) the filing of any such
amendment or supplement, (ii) any request by the Commission or its staff for any
amendment to the Registration Statement, for any supplement to any Statutory Prospectus
or for any additional information, (iii) the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or the threatening of any
proceeding for that purpose, and (iv) the receipt by the Company of any notification
with respect to the suspension of the qualification of the Units (including the Shares
and Warrant Shares) in any jurisdiction or the institution or threatening of any
proceedings for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Units is (or but for the exemption in Rule 172 under the Act would be)
required to be delivered under the Act in connection with sales by the Company to any
Purchasers, any event occurs as a result of which the Final Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary at any
time to amend the Registration Statement or supplement the Final Prospectus to comply
with the Act, the Company will promptly notify the Placement Agents of such event and
will promptly prepare and file with the Commission and furnish, at its own expense, to
the Placement Agents and, to the extent applicable, the dealers and any other dealers
upon request of the Placement Agents, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Placement Agents’ consent to, nor the Placement Agents’ delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date
of this Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the date of
this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Placement Agents
copies of the Registration Statement, including all exhibits, any Statutory Prospectus
relating to the Units, the Final Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
15
as the Placement Agents reasonably requests. The Company will pay the expenses of
printing and distributing to the Placement Agents all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Units for sale under the laws of such jurisdictions as the Placement Agents designate
and will continue such qualifications in effect so long as required for the
distribution; provided that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such jurisdiction
or take any action that would subject it to taxation in any such jurisdiction where it
is not then so subject.
(g) Reporting Requirements. During the period of five years after the date of the
this Agreement, the Company will furnish to the Placement Agents as soon as practicable
after the end of each fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Placement Agents (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the Placement Agents may reasonably
request. However, so long as the Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”), it is not required to furnish such reports or statements to the Placement
Agents.
(h) Payment of Expenses. The Company will pay all fees and expenses incident to
the performance of the its obligations under this Agreement, including but not limited
to (i) any filing fees and other expenses (including reasonable fees and disbursements
of counsel to the Placement Agents) incurred in connection with qualification of the
Units for sale under the laws of such jurisdictions as the Placement Agents may
designate and the preparation and printing of memoranda relating thereto, (ii) any costs
and expenses related to, the review by the National Association of Securities Dealers,
Inc. of the Units (including filing fees and the reasonable fees and dispursements of
counsel for the Placement Agents relating to such review), (iii) any travel expenses of
the Company’s officers and employees and any other expenses of the Company in connection
with attending or hosting meetings with prospective purchasers of the Units, (iv) fees
and expenses incident to listing the Shares and Warrant Shares on the NASDAQ Global
Market and other national and foreign exchanges, (v) fees and expenses in connection
with the registration of the Units under the Exchange Act, (vi) fees and expenses
incurred in distributing any Statutory Prospectuses and the Final Prospectus (including
any amendments and supplements thereto) to the Placement Agents and for expenses
incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses
to investors or prospective investors, (vii) fees and expenses of the Escrow Agent and
under the Escrow Agreement and (viii) all other costs and expenses incurred by the
Company incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section.
16
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with any offering of the Units in the manner described in the “Use of Proceeds” section
of the General Disclosure Package and, except as disclosed in the General Disclosure
Package, the Company does not intend to use any of the proceeds from the sale of the
Units hereunder to repay any outstanding debt owed to any affiliate of the Placement
Agents.
(j) Absence of Manipulation. The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, stabilization or manipulation of the price of any securities of the
Company to facilitate the sale or resale of the Units.
(k) Restriction on Sale of Securities. For the period specified below (the
“Lock-Up Period”), the Company will not, directly or indirectly, take any of the
following actions with respect to its Common Stock or any securities convertible into or
exchangeable or exercisable for its Common Stock (“Lock-Up Securities”): (i) offer,
sell, issue, contract to sell, pledge or otherwise dispose of, Lock-Up Securities, (ii)
offer, sell, issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other
agreement that transfers, in whole or in part, the economic consequences of ownership of
Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Lock-Up Securities within the meaning of Section
16 of the Exchange Act or (v) file with the Commission a registration statement under
the Act relating to Lock-Up Securities, or publicly disclose the intention to take any
such action, without the prior written consent of Credit Suisse, except issuances of
Lock-Up Securities pursuant to the conversion of convertible securities or the exercise
of warrants or options, in each case outstanding on the date of this Agreement, grants
of employee stock options pursuant to the terms of a plan in effect on the date of this
Agreement, or issuances of Lock-Up Securities pursuant to the exercise of such options.
The initial Lock-Up Period will commence on the date hereof and continue for 90 days
after the date of the commencement of the public offering of the Units or such earlier
date that Credit Suisse consents to in writing; provided, however, that if (1) during
the last 17 days of the initial Lock-Up Period, the Company releases earnings results or
material news or a material event relating to the Company occurs or (2) prior to the
expiration of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be extended until the
expiration of the 18-day period beginning on the date of release of the earnings results
or the occurrence of the materials news or material event, as applicable, unless Credit
Suisse waives, in writing, such extension. The Company will provide the Placement
Agents with notice of any announcement described in clause (2) of the preceding sentence
that gives rise to an extension of the Lock-Up Period.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Placement Agents, and each Placement Agent, severally and not jointly,
17
represents and agrees that, unless it obtains the prior consent of the Company, it has not
made and will not make any offer relating to the Units that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the
Company and the Placement Agents, each of which is set forth on Schedule A hereto, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated
and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping.
7. Conditions of the Obligations of the Placement Agents. The obligations of the Placement
Agents hereunder will be subject to the accuracy of the representations and warranties of the
Company herein (as though made on such Closing Date), to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Placement Agents shall have received letters,
dated, respectively, the date hereof and the Closing Date, of Ernst & Young LLP
confirming that they are a registered public accounting firm and independent public
accountants within the meaning of the Securities Laws and substantially in the form of
Schedule B hereto (except that, in any letter dated the Closing Date, the specified date
referred to in Schedule B hereto shall be a date no more than three days prior to the
Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company or the Placement Agents, shall be contemplated by
the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken
as a whole which, in the judgment of Credit Suisse, as representative of the Placement
Agents, is material and adverse and makes it impractical or inadvisable to market the
Units; (ii) any downgrading in the rating of any debt securities of the Company by any
“nationally recognized statistical rating organization” (as defined for purposes of Rule
436(g)), or any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change
18
in U.S. or international financial, political or economic conditions or currency
exchange rates or exchange controls, the effect of which is such as to make it, in the
judgment of Credit Suisse, as representative of the Placement Agents, impractical to
market or to enforce contracts for the sale of the Units, whether in the primary market
or in respect of dealings in the secondary market; (iv) any suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or any
setting of minimum or maximum prices for trading on such exchange; (v) or any suspension
of trading of any securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S. federal or New York
authorities; (vii) any major disruption of settlements of securities, payment, or
clearance services in the United States or any other country where such securities are
listed or (viii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of the Placement
Agents, the effect of any such attack, outbreak, escalation, act, declaration, calamity
or emergency is such as to make it impractical or inadvisable to market the Units or to
enforce contracts for the sale of the Units.
(d) Opinion of Counsel for the Company. The Placement Agents shall have received
an opinion, dated such Closing Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional
Corporation, counsel for the Company, to the effect set forth in Exhibit C
attached hereto.
(e) Opinion of Counsel for the Company. The Placement Agents shall have received
an opinion, dated such Closing Date, of DLA Xxxxx Xxxxxxx Xxxx Xxxx LLP, counsel for the
Company, to the effect set forth in Exhibit D attached hereto.
(f) Opinion of Counsel for the Company. The Placement Agents shall have received
an opinion, dated such Closing Date, of Xxxxxxx Xxxxxxxxx, counsel for the Company, to
the effect set forth in Exhibit E attached hereto.
(g) Opinion of Counsel for the Placement Agents. The Placement Agents shall have
received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Placement Agents,
such opinion or opinions, dated such Closing Date, with respect to such matters as the
Placement Agents may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(h) Officer’s Certificate. The Placement Agents shall have received a certificate,
dated the Closing Date, of an executive officer of the Company and a principal financial
or accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company in this Agreement are true and correct;
the Company has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date in all material
respects; no stop order suspending the effectiveness of the Registration
19
Statement or of any part thereof has been issued and no proceedings for that purpose
have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; and subsequent to the date of the
most recent financial statements in the General Disclosure Package, there has been no
material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its subsidiaries taken as a whole
except as set forth in the General Disclosure Package or as described in such
certificate.
(i) Lock-up Agreements. On or prior to the date hereof, the Placement Agents shall
have received lockup letters from each of the executive officers and directors of the
Company.
(j) Subscription Agreements; Escrow Agreement. The Company shall have entered into
(i) the Subscription Agreements with each of the Purchasers and (ii) the Escrow
Agreement with the Placement Agents and the Escrow Agent, and such agreements shall be
in full force and effect.
(k) Listing. The Shares shall have been approved for listing on the NASDAQ Global
Market, subject to notice of issuance.
The Company will furnish the Placement Agents with such conformed copies of such opinions,
certificates, letters and documents as the Placement Agents may reasonably request. The Placement
Agents may in their sole discretion waive compliance with any conditions to the obligations of the
Placement Agents under this Agreement.
8. Indemnification and Contribution.
(a) Indemnification of Placement Agents. The Company will indemnify and hold
harmless each Placement Agent, its partners, members, directors, officers, employees,
agents, affiliates and each person, if any, who controls any Placement Agent within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint
or several, to which such Indemnified Party may become subject, under the Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in any part of the Registration Statement at any time, any Statutory
Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus,
or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Indemnified Party for any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or
defending against any such loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever
20
(whether or not such Indemnified Party is a party thereto), whether threatened or
commenced, and in connection with the enforcement of this provision with respect to any
of the above as such expenses are incurred; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by the Placement Agents
specifically for use therein, it being understood and agreed that the only such
information furnished by the Placement Agents consists of the information described as
such in subsection (b) below.
(b) Indemnification of Company. Each Placement Agent will, severally and not
jointly, indemnify and hold harmless the Company, each of its directors and each of its
officers who signs the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(each, a “Placement Agent Indemnified Party”), against any losses, claims, damages or
liabilities to which such Placement Agent Indemnified Party may become subject, under
the Act, the Exchange Act, other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any part of the Registration Statement at any time,
any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or the alleged omission of a
material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company by
such Placement Agent specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by such Placement Agent Indemnified Party in connection
with investigating or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Placement Agent
Indemnified Party is a party thereto), whether threatened or commenced, based upon any
such untrue statement or omission, or any such alleged untrue statement or omission as
such expenses are incurred, it being understood and agreed that no such information has
been furnished by any Placement Agent.
(c) Actions against Parties; Notification. Promptly after receipt by an
indemnified party under this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above except
to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability that it may
have to an
21
indemnified party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such
action and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and
the Placement Agents on the other from the offering of the Units 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
Placement Agents on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand
and the Placement Agents on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Placement Agents. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by
the Company or the Placement Agents and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), the
Placement Agents shall not be required to
22
contribute any amount in excess of the amount by which total compensation received by
the Placement Agents in accordance with Section 2(e) exceeds the amount of any damages
which the Placement Agents have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Company and the Placement Agents agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8(d).
(e) Control Persons. The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any Placement Agent
within the meaning of the Act; and the obligations of the Placement Agents under this
Section shall be in addition to any liability which the Placement Agents may otherwise
have and shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the Company or its
officers and of the Placement Agents set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Placement Agents, the Company or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Units. If the sale and issuance of the Units by the Company hereunder are not
consummated for any reason, the Company will reimburse the Placement Agents for all out of pocket
expenses (including fess and disbursements of counsel) reasonably incurred in connection with the
offering of the Units, and the respective obligations of the Company and the Placement Agents
pursuant to Section 8 hereof shall remain in effect. In addition, if any Units have been purchased
under this Agreement and the Subscription Agreements, the representations and warranties in Section
4 hereof and all obligations under Section 5 hereof shall also remain in effect.
10. Notices. All communications hereunder will be in writing and, if sent to the Placement
Agents, will be mailed, delivered or telegraphed and confirmed to (a) Credit Suisse Securities
(USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: LCD-IBD, (b) Xxxxxxx &
Company, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Corporate Finance Department, (c)
Canaccord Xxxxx Inc., 00 Xxxx Xxxxxx, Xxxxxx, XX 00000, and (d) Cantor Xxxxxxxxxx & Co., 000 Xxxx
00xx Xxxxxx, Xxx Xxxx XX 00000, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, XX 00000, Attention:
Chief Financial Officer.
23
11. Successors. This Agreement will inure to the benefit of and be binding upon parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
13. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Placement Agents have been retained solely to act
as placement agents in connection with the sale of Units and that no fiduciary, advisory
or agency relationship between the Company and the Placement Agents has been created in
respect of any of the transactions contemplated by this Agreement, any Subscription
Agreement or the Final Prospectus, irrespective of whether the Placement Agents have
advised or is advising the Company on other matters;
(b) Arm’s-Length Negotiations. The price of the Units set forth in this Agreement
was established by the Company following discussions and arm’s-length negotiations with
the Placement Agents and the Company is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the
Placement Agents and their affiliates are engaged in a broad range of transactions which
may involve interests that differ from those of the Company and that the Placement
Agents have no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims
it may have against the Placement Agents for breach of fiduciary duty or alleged breach
of fiduciary duty and agrees that the Placement Agents shall have no liability (whether
direct or indirect) to the Company in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the Company.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated thereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated thereby
24
in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum.
[The remainder of this page is intentionally left blank]
25
If the foregoing is in accordance with the Placement Agents’ understanding of our agreement, kindly
sign and return to the Company one of the counterparts hereof, whereupon it will become a binding
agreement between the Company and the Placement Agents in accordance with its terms.
| Very truly yours, Cell Genesys, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Placement Agency Agreement
The foregoing Placement Agency Agreement is hereby
confirmed and accepted as of the date first above
written.
| Credit Suisse Securities (USA) LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Xxxxxxx & Company, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Canaccord Xxxxx Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Cantor Xxxxxxxxxx & Co. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature
Page to Placement Agency Agreement
SCHEDULE A
1. Statutory Prospectus Included in the General Disclosure Package
1. Base Prospectus, dated February 6, 2003, as supplemented by the Preliminary Prospectus
Supplement, dated April 10, 2007.
2. General Use Issuer Free Writing Prospectuses (included in the General Disclosure Package)
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
Term Sheet
3. Other Information Included in the General Disclosure Package
The following information is also included in the General Disclosure Package: None
4. Permitted Free Writing Prospectus
Term Sheet
