Exhibit 1.1
___________ SHARES(1)
GENITOPE CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
_________, 0000
X.X. Xxxxxxxxx + Co., LLC
Punk, Xxxxxx & Company
As Representatives of the several Underwriters
x/x X.X. Xxxxxxxxx + Co., LLC
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Genitope Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to an aggregate of __________ shares of its
authorized but unissued common stock, $0.001 par value per share (the "Common
Stock"), to the Underwriters (as hereinafter defined), for whom you (the
"Representatives") are acting as representatives (said ________ shares of Common
Stock to be issued and sold by the Company being herein called the "Underwritten
Stock"). The Company has also granted the Underwriters an option to purchase up
to an aggregate of _______ additional shares of Common Stock (the "Option
Stock," and the Option Stock together with the Underwritten Stock being
hereinafter referred to as the "Shares"). The Common Stock is more fully
described in the Registration Statement and the Prospectus hereinafter
mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Shares by the Underwriters, named in Schedule 1 hereto (herein
collectively called the "Underwriters," which term shall also include any
underwriter purchasing Shares pursuant to Section 3(b) hereof). You represent
and warrant that you have been authorized by each of the other Underwriters to
enter into this Underwriting Agreement (this "Agreement") on its behalf and to
act for it in the manner herein provided.
1. REGISTRATION STATEMENT. The Company has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-1 (No. 333-107719), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares. Copies of such registration
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1 Plus an option to purchase from the Company up to an aggregate of
additional shares to cover over-allotments.
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statement and of each amendment thereto, if any, including the related
preliminary prospectus (meeting the requirements of Rule 430A of the rules and
regulations of the Commission) heretofore filed by the Company with the
Commission have been delivered to you.
(a) The term "Registration Statement" as used in this
Agreement shall mean such registration statement, including all exhibits and
financial statements, all information omitted therefrom in reliance upon Rule
430A and contained in the Prospectus referred to below, in the form in which it
became effective, and any registration statement filed pursuant to Rule 462(b)
of the rules and regulations of the Commission with respect to the Shares
(herein called a "Rule 462(b) registration statement"), and, in the event of any
amendment thereto after the effective date of such registration statement (the
"Effective Date"), shall also mean (from and after the effectiveness of such
amendment) such registration statement as so amended (including any Rule 462(b)
registration statement). The term "Prospectus" as used in this Agreement shall
mean the prospectus relating to the Shares first filed with the Commission
pursuant to Rule 424(b) and Rule 430A (or if no such filing is required, as
included in the Registration Statement) and, in the event of any supplement or
amendment to such prospectus after the Effective Date, shall also mean (from and
after the filing with the Commission of such supplement or the effectiveness of
such amendment) such prospectus as so supplemented or amended. The term
"Preliminary Prospectus" as used in this Agreement shall mean each preliminary
prospectus included in such registration statement prior to the time it becomes
effective.
(b) The Registration Statement has been declared effective
under the Securities Act, and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. The Company has
caused to be delivered to you copies of each Preliminary Prospectus and has
consented to the use of such copies for the purposes permitted by the Securities
Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Underwriters as follows:
(a) Neither the Commission nor any state securities
commission has issued any order preventing or suspending the use of any
Preliminary Prospectus or has instituted or, to the Company's knowledge,
threatened to institute any proceedings with respect to such an order. The
Registration Statement and the Prospectus comply, and on the Closing Date (as
hereinafter defined) and any later date on which the Option Stock is to be
purchased, the Prospectus will comply, in all material respects, with the
provisions of the Securities Act and the rules and regulations of the Commission
thereunder (the "Securities Act and Rules"). On the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and on the
Effective Date the Prospectus did not, and on the Closing Date and any later
date on which the Option Stock is to be purchased, will not, contain any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein, or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that none of the representations and warranties
in this subparagraph 2(a) shall apply to statements in, or omissions from, the
Registration Statement or the Prospectus made in reliance upon and in
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conformity with information herein or otherwise furnished in writing to the
Company by or on behalf of the Underwriters expressly for use in the
Registration Statement or Prospectus.
(b) The Company (i) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, having corporate power and corporate authority to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and (ii) is duly qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in which the
character of the property owned or leased or the nature of the business
transacted by it makes qualification necessary (except where the failure to be
so qualified would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company). The
Company has no subsidiaries and does not own any capital stock or other equity
securities in any other entity, except for instruments or interests held by the
Company solely for investment.
(c) The Company has the duly authorized and validly issued
outstanding capitalization as of [______, 2003] set forth under the caption
"Capitalization" in the Prospectus and will have the adjusted capitalization as
of [__________, 2003] (giving effect to the closing of the offering contemplated
by this Agreement) set forth therein on the Closing Date and any later date on
which the Option Stock is to be purchased, based on the assumptions set forth
therein. The securities of the Company conform to the descriptions thereof
contained in the Registration Statement and the Prospectus. The form of
certificates for the Shares conforms to the requirements of the Delaware General
Corporation Law. The outstanding shares of the Company's capital stock have been
duly authorized and validly issued by the Company and are fully paid and
nonassessable and, except as otherwise described in the Preliminary Prospectus,
the Prospectus and the Registration Statement, were issued in transactions that
were exempt from the registration requirements of the Securities Act, without
violation of any preemptive rights, rights of first refusal or similar rights.
Except as created hereby or otherwise described in the Registration Statement
and the Prospectus, there are no outstanding options, warrants, rights or other
arrangements requiring the Company at any time to issue any capital stock. No
holders of outstanding shares of capital stock of the Company are entitled as
such to any preemptive or other rights to subscribe for any of the Shares to be
sold by the Company, and neither the filing of the Registration Statement nor
the offering or sale of the Shares to be sold by the Company as contemplated by
this Agreement gives rise to any rights, other than those that have lapsed or
have been waived or satisfied, for or relating to, the registration of any
securities of the Company. The Shares to be sold by the Company are duly
authorized, and will be, when sold to the Underwriters as provided herein,
validly issued, fully paid and nonassessable and conform to the description
thereof contained in the section of the Registration Statement and the
Prospectus entitled "Description of Capital Stock." No further approval or
authority of the stockholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares to be sold by the Company as
contemplated herein.
(d) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein. This Agreement has been duly authorized, executed and delivered by the
Company and, assuming it is a binding agreement of the Underwriters, constitutes
a legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms (except as such enforceability may
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be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting the enforcement of
creditors' rights and the application of equitable principles relating to the
availability of remedies and except as rights to indemnity or contribution may
be limited by federal or state securities laws and the public policy underlying
such laws), and none of the Company's execution or delivery of this Agreement,
its performance hereunder, its consummation of the transactions contemplated
herein, its application of the net proceeds of the offering in the manner set
forth under the caption "Use of Proceeds" or the conduct of its business as
described in the Registration Statement and the Prospectus, conflicts or will
conflict with or results or will result in any breach or violation of any of the
terms or provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or acceleration
of any liability or obligation or the termination of any right under, or result
in the creation or imposition of any lien, charge or encumbrance upon, any
property or assets of the Company pursuant to the terms of (i) the certificate
of incorporation or bylaws of the Company; (ii) any indenture, mortgage, deed of
trust, voting trust agreement, stockholders' agreement, note agreement or other
agreement or instrument to which the Company is a party or by which it is bound
or to which its respective property is subject; or (iii) any statute, judgment,
decree, order, rule or regulation applicable to the Company of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or its activities or properties, which materially and adversely affect
the business or properties of the Company.
(e) The Common Stock has been approved for quotation on The
Nasdaq National Market and, prior to the Closing Date, (i) the Common Stock
shall be listed and duly admitted to trading on The Nasdaq National Market and
(ii) the Shares will be authorized for inclusion in The Nasdaq National Market.
(f) The financial statements of the Company and the related
notes and schedules thereto included in the Registration Statement and the
Prospectus fairly present the financial position, results of operations,
stockholders' equity and cash flows of the Company at the dates and for the
periods specified therein. Such financial statements and the related notes and
schedules thereto have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
(except as otherwise noted therein) and all adjustments necessary for a fair
presentation of results for such periods have been made; provided, however, that
the unaudited financial statements are subject to normal year-end audit
adjustments (which are not expected to be material) and do not contain all
footnotes required under generally accepted accounting principles. The summary
and selected financial and statistical data included in the Registration
Statement and the Prospectus present fairly the information shown therein and
such data have been prepared on a basis consistent with the financial statements
contained therein and in the books and records of the Company.
(g) PricewaterhouseCoopers, LLP who has certified our
balance sheets, related statements of operations, stockholders' equity, and cash
flows as of [________] and [_____], and our results of operations and cash flows
for each of the three years in the period ended [__________], filed with the
Commission as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Securities Act and the rules
and regulations promulgated thereunder. All auditing services and non-audit
services, other than
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de minimus services, provided to the Company by PricewaterhouseCoopers LLP since
August 6, 2003, have been preapproved by the Company's board of directors, which
included the members of the audit committee of the Company's board of directors.
(h) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has disclosure controls and procedures (as defined in
Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) that are designed to ensure that material information
relating to the Company is made known to the Company's principal executive
officer and the Company's principal financial officer or persons performing
similar functions.
(i) The Company has filed all necessary federal, state and
local income, franchise and other material tax returns and has paid all taxes
shown as due thereunder, and the Company has no tax deficiency that has been or,
to their knowledge, that might be assessed against the Company that, if so
assessed, would materially and adversely affect the business or properties of
the Company. All tax liabilities accrued through the date hereof have been
adequately provided for on the books of the Company.
(j) The Company maintains insurance underwritten by insurers
of recognized financial responsibility of the types and in amounts and with such
deductibles as customary for companies in the same or similar business, all of
which insurance is in full force and effect.
(k) Except as disclosed in the Registration Statement and
the Prospectus, there is no action, suit, claim, proceeding or investigation
pending or, to the Company's knowledge, threatened against the Company before or
by any court, regulatory body or administrative agency or any other governmental
agency or body, domestic or foreign, that (i) questions the validity of the
capital stock of the Company or this Agreement or any action taken or to be
taken by the Company pursuant to or in connection with this Agreement; (ii) is
required to be disclosed in the Registration Statement and the Prospectus, which
is not so disclosed (and such proceedings, if any, as are summarized in the
Registration Statement and the Prospectus are accurately summarized in all
material respects); or (iii) may have a material adverse affect upon the
business operations, financial condition or income of the Company.
(l) All executed agreements or copies of executed agreements
filed or incorporated by reference as exhibits to the Registration Statement
have been duly and validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding agreements of the Company enforceable by
and against it in accordance with their respective terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to enforcement of creditors'
rights generally, and general equitable principles relating to the availability
of remedies, and except as rights to
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indemnity or contribution may be limited by federal or state securities laws and
the public policy underlying such laws). The descriptions in the Registration
Statement and the Prospectus of contracts and other documents are accurate and
fairly present the information required to be shown with respect thereto by the
Securities Act and Rules. There are no contracts or other documents that are
required by the Securities Act or Rules to be described in the Registration
Statement and the Prospectus or filed as exhibits to the Registration Statement
that are not described or filed as required. The exhibits that have been filed
are complete and correct copies of the documents of which they purport to be
copies. Except for such rights as are described in the Registration Statement
and the Prospectus, no party has any right to require the Company to register
any securities for sale under the Securities Act.
(m) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as expressly
contemplated therein, the Company has not incurred, other than in the ordinary
course of its business, any material liabilities or obligations, direct or
contingent, purchased any of its outstanding capital stock, paid or declared any
dividends or other distributions on its capital stock or entered into any
material transactions, and there has been no material change in capital stock or
debt or any material adverse change in the business, properties, assets, net
worth, condition (financial or otherwise) or results of operations of the
Company, whether or not arising from transactions in the ordinary course of
business.
(n) The Company is not, nor with the giving of notice or
lapse of time or both will it be, in violation of or in default under, any term
or provision of (i) its certificate of incorporation or bylaws; (ii) any
indenture, mortgage, deed of trust, voting trust agreement, stockholders'
agreement, note agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property is subject, or any
indebtedness, the effect of which breach or default singly or in the aggregate
may have a material adverse effect on the business, management, properties,
assets, rights, operations or condition (financial or otherwise) of the Company;
or (iii) any statute, judgment, decree, order, rule or regulation applicable to
the Company or of any arbitrator, court, regulatory body, administrative agency
or any other governmental agency or body, domestic or foreign, having
jurisdiction over the Company or its activities or properties and the effect of
which violation or default singly or in the aggregate may have a material
adverse effect on the business, management, properties, assets, rights,
operations or condition (financial or otherwise) of the Company.
(o) The Company has not incurred any liability for a fee,
commission, or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other
than as contemplated hereby.
(p) No labor disturbance by the employees of the Company or
principal suppliers or customers of the Company exists or, to the Company's
knowledge, is imminent.
(q) Except as disclosed in the Registration Statement and
the Prospectus, the Company owns, is licensed or otherwise possesses all rights
to use, all patents, patent rights, inventions, know-how (including trade
secrets and other unpatented or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service
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marks, trade names, copyrights and other intellectual property rights
(collectively, the "Rights") necessary for the conduct of its business as
described in the Registration Statement and the Prospectus. Except as disclosed
in the Registration Statement and the Prospectus, to the Company's knowledge, no
claims have been asserted against the Company by any person with respect to the
use of any such Rights or challenging or questioning the validity or
effectiveness of any such Rights. Except as disclosed in the Registration
Statement and the Prospectus, the continued use of the Rights in connection with
the business and operations of the Company does not, to the knowledge of the
Company, infringe on the rights of any person, which, if the subject of an
unfavorable decision, ruling or filing, would have a material adverse effect on
the financial condition, business or properties of the Company.
(r) Except as disclosed in the Registration Statement and
the Prospectus, the Company is conducting its businesses in compliance with all
applicable laws, ordinances or governmental rules or regulations of the
jurisdictions in which it is conducting business, except where the failure to be
so in compliance would not materially and adversely affect the business or
properties of the Company. Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") to qualify or exempt the
Shares for public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made and is in full force and effect.
(s) Neither the Company, nor, to the Company's knowledge,
any of its officers, directors or affiliates (within the meaning of the rules
and regulations promulgated under the Securities Act), has taken or may take,
directly or indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(t) The Company is not, nor after giving effect to the
issuance and sale of the Shares by the Company will it be, an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
(u) There are no transfer taxes or similar fees or charges
under federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance and sale by the Company of the Shares.
(v) The Company has good and marketable title to all
properties and assets described in the Registration Statement and the Prospectus
as owned by it, free and clear of all liens, encumbrances, security interests,
equities, claims and defects, except such as are described in the Registration
Statement and Prospectus, or such as are not materially important in relation to
the business of the Company. The Company has valid and enforceable leases for
the properties described in the Registration Statement and the Prospectus as
leased by it, free and clear of all liens, encumbrances, security interests,
equities, claims and defects, except such as
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are not material and do not interfere with the use made by the Company thereof.
The Company owns or leases all such properties as are necessary to its
operations as now conducted, as set forth in the Registration Statement and the
Prospectus, and the properties and businesses of the Company conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(w) The Company holds all franchises, licenses, permits,
approvals, certificates and other authorizations from federal, state and other
governmental or regulatory authorities necessary for the ownership, leasing and
operation of its properties or required for the present conduct of its business,
and such franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect and the Company is in
compliance therewith in all material respects, except where the failure so to
hold, obtain, maintain or comply with would not have a materially adverse effect
on the business, financial condition or results of operations of the Company.
(x) 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 (herein called "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 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.
(y) No relationship, direct or indirect, exists between or
among the Company, on the one hand, and the current or prior directors,
officers, stockholders, customers or suppliers of the Company, on the other
hand, which is required to be described in the Registration Statement and the
Prospectus that is not so described.
(z) 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 provisions of
the Foreign Corrupt Practices Act of 1972; or made any bribe, rebate, payoff,
influence, payment, kickback or other unlawful payment.
(aa) Since August 6, 2003, the Company has not, directly or
indirectly, including through any subsidiary, extended or maintained credit,
arranged for the extension of credit or renewed an extension of credit in the
form of a personal loan to or for any director or executive officer in violation
of Section 13(k) of the Exchange Act.
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(bb) The business, operations and facilities of the Company
have been and are being conducted or operated in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals, plans,
authorizations or requirements relating to occupational safety and health,
pollution, protection of health or the environment (including, without
limitation, those relating to emissions, discharges, release or threatened
releases of pollutants, contaminants or hazardous or toxic substances, materials
or wastes into ambient air, surface water, groundwater or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes, whether solid, gaseous or
liquid in nature) or otherwise relating to remediating real property in which
the Company has or has had any interest, whether owned or leased, of any
governmental department, commission, board, bureau, agency or instrumentality of
the United States, any state or political subdivision thereof and all applicable
judicial or administrative agency or regulatory decrees, awards, judgments and
orders relating thereto, except for such failures to so comply as would not,
individually or in the aggregate, have a material adverse effect on the business
of the Company, and the Company has not received any notice from a governmental
instrumentality or any third party alleging any violation thereof or liability
thereunder (including, without limitation, liability for costs of investigating
or remediating sites containing hazardous substances or damage to natural
resources).
(cc) Neither the Company nor any officer or employee of the
Company is a party to any contract or commitment that restricts in any material
respect the ability of the Company or such individual to engage in the business
of the Company as described in the Registration Statement and the Prospectus.
3. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company shall sell the
Underwritten Stock to the Underwriters, and the Underwriters agree to purchase
from the Company, the Underwritten Stock. The price at which such shares of
Underwritten Stock shall be sold by the Company and purchased by the
Underwriters shall be [______] per share (the "Purchase Price"). In making this
Agreement, each Underwriter is contracting severally and not jointly; and except
as provided in paragraphs (b) and (c) of this Section 3, the agreement of each
Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified in Schedule 1.
(b) If for any reason one of the Underwriters shall fail or
refuse (other than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 7 or 12 hereof) to purchase and pay
for the number of Shares agreed to be purchased by such Underwriter, the
non-defaulting Underwriters shall have the right within 24 hours after the
receipt by you of notice of such failure or refusal to so purchase, to purchase
or procure one or more other Underwriters to purchase, in such proportions as
may be agreed upon between you and such purchasing Underwriter and upon the
terms herein set forth, all or any part of the Shares that such defaulting
Underwriter agreed to purchase. If a non-defaulting Underwriter fails so to make
such arrangements with respect to all such Shares and portion, the number of
Shares that such non-defaulting Underwriter is otherwise obligated to purchase
under this Agreement shall be automatically increased on a pro rata basis to
absorb the remaining Shares
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and portion that the defaulting Underwriter agreed to purchase; provided,
however, that such non-defaulting Underwriter shall not be obligated to purchase
the Shares and portion that such defaulting Underwriter agreed to purchase if
the aggregate number of such Shares exceeds 10% of the total number of Shares
that the Underwriters agreed to purchase under this Agreement. If the total
number of Shares that the defaulting Underwriter agreed to purchase shall not be
purchased or absorbed in accordance with the two preceding sentences, the
Company shall have the right, within 24 hours next succeeding the 24-hour period
referred to above, to make arrangements with other underwriters or purchasers
satisfactory to you for purchase of such Shares and portion on the terms herein
set forth. In any such case, either you or the Company shall have the right to
postpone the Closing Date determined as provided in Section 5 hereof for not
more than seven business days after the date originally fixed as the Closing
Date pursuant to said Section 5 in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or arrangements
may be made. If such non-defaulting Underwriter does not make arrangements
within the 24-hour periods stated above for the purchase of all the Shares that
such defaulting Underwriter agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to the non-defaulting Underwriter or on the part of the
non-defaulting Underwriter to the Company. Nothing in this paragraph 3(b), and
no action taken hereunder, shall relieve a defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Company grants an option to the Underwriters to purchase, severally
and not jointly, the Option Stock at the Purchase Price. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Stock by
the Underwriters and may be exercised in whole or in part at any time (but not
more than once) on or before the 30th day after the date of this agreement upon
written or electronic notice by the Underwriters to the Company setting forth
the aggregate number of shares of Option Stock as to which the Underwriters are
exercising the option. Delivery of the certificates for the shares of Option
Stock, and payment therefor shall be made as provided in Section 5 hereof. The
number of shares of Option Stock to be purchased by each Underwriter shall be in
such amounts as the Underwriters shall agree upon prior to the exercise of the
option set forth hereunder.
4. OFFERING BY THE UNDERWRITERS.
(a) The terms of the initial public offering by the
Underwriters of the Shares to be purchased by them shall be as set forth in the
Prospectus. The Underwriters may from time to time change the public offering
price after the closing of the initial public offering and increase or decrease
the concessions and discounts to dealers as they may determine.
(b) The information set forth in the paragraph describing
the "OpenIPO" process on the front cover page, in the second to last paragraph
under the caption "The Offering" and under the caption "Plan of Distribution" in
the Registration Statement, any Preliminary Prospectus and the Prospectus
relating to the Shares filed by the Company (insofar as such information relates
to the Underwriters or related persons) constitutes the only information
furnished by the Underwriters to the Company for inclusion in the Registration
Statement, any Preliminary Prospectus and the Prospectus, and you, on behalf of
the
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Underwriters, represent and warrant to the Company that the statements made
therein (insofar as they relate to the Underwriters or related persons) are
correct and do not omit any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
5. DELIVERY OF AND PAYMENT FOR THE SHARES.
(a) Delivery of certificates for the shares of the
Underwritten Stock and the Option Stock (if the option granted by Section 3(c)
hereof shall have been exercised not later than 8:00 A.M., San Francisco time,
on the date two business days preceding the Closing Date), and payment therefor,
shall be made at the office of Xxxxxx Godward LLP, 0000 Xxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000, on the third business day after the date of this
Agreement, or at such time on such other day, not later than seven full business
days after such third business day, as shall be agreed upon in writing by the
Company and you. The date and hour of such delivery and payment are herein
called the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be
exercised after 8:00 A.M., San Francisco time, on the date two business days
preceding the Closing Date, delivery of certificates for the shares of Option
Stock, and payment therefor, shall be made at the office of Cooley Godward LLP,
0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, on the third business day
after the exercise of such Option, or at such time on such other day, not later
than seven full business days after such third business day, as shall be agreed
upon in writing by the Company and you.
(c) Payment for the Shares purchased from the Company shall
be made to the Company or its order by wire transfer or one or more certified or
official bank check or checks in same day funds. Such payment shall be made upon
delivery of certificates for the Shares to you against receipt therefor signed
by you. Certificates for the Shares to be delivered to you shall be registered
in the name or names and shall be in such denominations as you may request at
least one business day before the Closing Date, in the case of Underwritten
Stock, and at least one business day prior to the purchase thereof, in the case
of Option Stock. Such certificates will be made available to the Underwriters
for inspection, checking and packaging on the business day preceding the Closing
Date or, in the case of Option Stock, by 12:00 P.M., San Francisco time, on the
business day preceding the date of purchase.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees as
follows:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A; and (ii) not file with the Commission any amendment to the
Registration Statement or supplement to the Prospectus (A) of which the
Underwriters shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing and as to which filing
the Underwriters shall not have given their consent or (B) of which is not in
compliance with the Securities Act or the rules and regulations of the
Commission thereunder.
11
(b) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Underwriters (i) of any request made by the
Commission for amendment of the Registration Statement, for supplement to the
Prospectus or for additional information; (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement, or
the institution or threat of any action, investigation or proceeding for that
purpose; or (iii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in any jurisdiction,
or the receipt by it of notice of the initiation or threatening of any
proceeding for that purpose. The Company will use its best efforts to prevent
the issuance of any such order and, if issued, to obtain the lifting or
withdrawal thereof as soon as possible.
(c) The Company will (i) on or before the Closing Date,
deliver to the Underwriters a signed copy of the Registration Statement as
originally filed and of each amendment thereto filed prior to the time the
Registration Statement becomes effective and, promptly upon the filing thereof,
a signed copy of each post-effective amendment, if any to the Registration
Statement (together with, in each case, all exhibits thereto unless previously
delivered to the Underwriters); (ii) as promptly as possible deliver to the
Underwriters, at such office as the Underwriters may designate, as many copies
of the Prospectus as the Underwriters may reasonably request; and (iii)
thereafter from time to time during the period in which a prospectus is required
by law to be delivered by an Underwriter or a dealer, likewise send to the
Underwriters as many additional copies of the Prospectus and as many copies of
any supplement to the Prospectus and of any amended prospectus, filed by the
Company with the Commission, as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus
is required by law to be delivered by an Underwriter or dealer any event
relating to or affecting the Company, or of which the Company shall be advised
in writing by the Underwriters, shall occur as a result of which it is
necessary, in the opinion of counsel for the Company or of counsel for the
Underwriters, to supplement or amend the Prospectus in order to make the
Prospectus not misleading in light of the circumstances existing at the time it
is delivered to a purchaser of the Shares, the Company will forthwith prepare
and file with the Commission a supplement to the Prospectus or an amended
prospectus so that the Prospectus as so supplemented or amended will not contain
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 existing at the time such Prospectus is delivered to such
purchaser, not misleading. If, after the initial public offering of the Shares
by the Underwriters and during such period, the Underwriters shall propose to
vary the terms of the offering thereof by reason of changes in general market
conditions or otherwise, you will advise the Company in writing of the proposed
variation, and, if in the opinion either of counsel for the Company or of
counsel for the Underwriters such proposed variation requires that the
Prospectus be supplemented or amended, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended prospectus
setting forth such variation. The Company authorizes the Underwriters and all
dealers to whom any of the Shares may be sold by the Underwriters to use the
Prospectus, as from time to time amended or supplemented, in connection with the
sale of the Shares in accordance with the applicable provisions of the
Securities Act and the applicable rules and regulations thereunder for such
period.
12
(e) Prior to the filing thereof with the Commission, the
Company will submit to you, for your information, a copy of any post-effective
amendment to the Registration Statement and any supplement to the Prospectus or
any amended prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by
you, in the qualification of the Shares for offer and sale under the securities
or blue sky laws of such jurisdictions as you may designate and, during the
period in which a prospectus is required by law to be delivered by an
Underwriter or a dealer, in keeping such qualifications in good standing under
said securities or blue sky laws; provided, however, that the Company shall not
be required to qualify as a foreign corporation or file any general consent to
service of process in any jurisdiction in which it is not so qualified. The
Company will from time to time, prepare and file such statements, reports and
other documents as are or may be required to continue such qualifications in
effect for so long a period as you may reasonably request for distribution of
the Shares.
(g) The Company agrees to pay the costs and expenses
relating to the following matters: (A) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus, and each amendment or supplement to any of them; (B) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Shares; (C) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including the transfer agent fees and any stamp or transfer taxes in connection
with the original issuance and sale of the Shares; (D) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Shares; (E) the registration of the Shares
under the Exchange Act and the listing of the Shares on the Nasdaq National
Market; (F) any registration or qualification of the Shares for offer and sale
under the securities or blue sky laws of the several states and any other
jurisdictions (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and qualification);
(G) any filings required to be made with the National Association of Securities
Dealers, Inc. (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (H) the transportation
and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Shares; (I) the
fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company; and (J) all other
costs and expenses incident to the performance by the Company of its obligations
hereunder.
(h) As soon as practicable, but in any event not later than
45 days after the end of the first fiscal quarter first occurring after the
first anniversary of the Effective Date, the Company will make generally
available to its security holders, in the manner specified in Rule 158(b) of the
rules and regulations promulgated under the Securities Act, an earnings
statement that will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a) of the Securities Act and Rule 158(a) of
the rules and regulations promulgated thereunder.
13
(i) During a period of three years after the date hereof,
the Company will furnish or make available to the Underwriters copies of all
periodic and special reports furnished to the stockholders of the Company and
copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on
Form 10-Q, Report on Form 8-K or any other information, documents or reports
filed with the Commission.
(j) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
(which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will not, directly or indirectly, without
the prior written consent of X.X. Xxxxxxxxx + Co., LLC, on behalf of the
Underwriters, issue, offer, sell, grant any option to purchase or otherwise
dispose (or announce any issuance, offer, sale, grant of any option to purchase
or other disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock for
a period of 180 days following the commencement of the public offering of the
Shares by the Underwriters, except (i) pursuant to this Agreement, (ii) pursuant
to the exercise of warrants outstanding on the date hereof and as described in
the Prospectus or (iii) pursuant to the exercise of stock options outstanding on
the date hereof, or granted subsequent to the date hereof, pursuant to a stock
option or other employee benefit plan in existence on the date hereof and as
described in the Prospectus.
(l) The Company will cause the Shares to be duly included
for quotation on the Nasdaq National Market prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and
will use its best efforts to cause its officers, directors or affiliates not to
take, directly or indirectly, any action designed to, or that might in the
future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds" in
the Prospectus.
(o) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Securities Act,
the rules and regulations promulgated thereunder, the Exchange Act and the rules
and regulations promulgated thereunder, and all such reports, forms and
documents filed will comply as to form and substance with the applicable
requirements under the Securities Act, the rules and regulations promulgated
thereunder, the Exchange Act and the rules and regulations promulgated
thereunder.
(p) The Company is familiar with the Investment Company Act
of 1940, as amended, and has in the past conducted its affairs, and will in the
future conduct its affairs, in such a manner to ensure that the Company was not
and will not be an "investment company" or a "company" controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
(q) The Company either has caused to be delivered to you or
will cause to be delivered to you prior to the effective date of the
Registration Statement a letter (the
14
"Lock-Up Agreement") from (i) each of the Company's directors, executive
officers, and five percent (5%) stockholders stating that such person agrees
that he or she will not, without the prior written consent of X.X. Xxxxxxxxx +
Co., LLC directly or indirectly, sell, offer, contract or grant any option to
sell (including without limitation any short sale), pledge, transfer, establish
an open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Exchange Act or otherwise dispose of (or enter into any transaction that is
designed to, or could be expected to, result in the disposition by any person
of) any shares of Common Stock, options or warrants to acquire shares of Common
Stock, or securities exchangeable or exercisable for or convertible into shares
of Common Stock currently or hereafter owned either of record or beneficially
(within the meaning of Rule 13d-3 under the Exchange Act) by him or her, or
publicly announce his or her intention to do any of the foregoing, for a period
of 180 days after the first date any Underwritten Stock is released by the
Underwriters for sale to the public and (ii) certain of the Company's other
stockholders containing identical restrictions to the Lock-Up Agreements
referred to in (i) above.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the several Underwriters under this Agreement are subject to the performance
by the Company on and as of the Closing Date or any later date on which Option
Stock is to be purchased, as the case may be, of its respective covenants and
agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective,
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued, and no proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission.
(b) The Underwriters shall be satisfied that (i) as of the
Effective Date, the statements made in the Registration Statement and the
Prospectus were true and correct and neither the Registration Statement nor the
Prospectus omitted to state a fact required to be stated therein or that is
necessary to make the statements therein not misleading; (ii) since the
Effective Date, no event has occurred that should have been set forth in a
supplement or amendment to the Prospectus that has not been set forth in an
effective supplement or amendment; (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in the business, properties, financial condition or
results of operations of the Company, whether or not arising from transactions
in the ordinary course of business, and since such dates, except in the ordinary
course of business, the Company has not entered into any material transaction
not referred to in the Registration Statement in the form in which it originally
became effective and the Prospectus contained therein; (iv) the Company does not
have any material contingent obligations that are not disclosed in the
Registration Statement and the Prospectus; (v) there are no pending or, to the
Company's knowledge, threatened legal proceedings to which the Company is a
party or of which property of the Company is subject that are material and that
are not disclosed in the Registration Statement and the Prospectus; (vi) there
are not any franchises, contracts, leases or other documents that are required
to be filed as exhibits to the Registration Statement that have not been filed
as required; and (vii) the representations and warranties of the
15
Company herein are true and correct in all material respects as of the Closing
Date or any later date on which Option Stock is to be purchased, as the case may
be.
(c) On or prior to the Closing Date, the legality and
sufficiency of the sale of the Shares hereunder and the validity and form of the
certificates representing the Shares, all corporate proceedings and other legal
matters incident to the foregoing, and the form of the Registration Statement
and of the Prospectus (except as to the financial statements and financial
information contained therein), shall have been approved at or prior to the
Closing Date by Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters. The
Underwriters shall have received from counsel to the Underwriters, such opinion
or opinions with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as the
Underwriters reasonably may request and such counsel shall have received such
documents and other information as they request to enable them to pass upon such
matters.
(d) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date or, if
related to the later sale of Option Stock, such later date, of Xxxxxx Godward
LLP, counsel to the Company, to the effect set forth in Exhibit A hereto. In
rendering any such opinion, such counsel may rely, as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and public officials.
(e) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated as of the Closing Date
or, if related to the later sale of Option Stock, such later date, of
[_________], regulatory counsel to the Company, to the effect set forth in
Exhibit B hereto.
(f) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option Stock, such later date, of Xxxxxx &
Xxxxxxx, LLP, patent counsel to the Company, to the effect set forth in Exhibit
C hereto.
(g) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option Stock, such later date, of Bozicevic,
Field & Xxxxxxx, LLP patent counsel to the Company, to the effect set forth in
Exhibit D hereto.
(h) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option Stock, such later date, of Xxxx, Xxxx,
Xxxx & Freidenrich, patent counsel to the Company, to the effect set forth in
Exhibit E hereto.
16
(i) You shall have received from PricewaterhouseCoopers, LLP
a letter addressed to the Underwriters dated the Closing Date and any later date
on which Option Stock is purchased, confirming that PricewaterhouseCoopers, LLP
are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder and based upon the procedures described in their letter delivered to
the Underwriters concurrently with the execution of this Agreement (the
"Original Letter"), but carried out to a date not more than three business days
prior to the Closing Date or such later date on which Option Stock is purchased
(i) confirming, to the extent true, that the statements and conclusions set
forth in the Original Letter are accurate as of the Closing Date or such later
date, as the case may be; and (ii) setting forth any revisions and additions to
the statements and conclusions set forth in the Original Letter that are
necessary to reflect any changes in the facts described in the Original Letter
since the date of the Original Letter or to reflect the availability of more
recent financial statements, data or information. The letters shall not disclose
any change, or any development involving a prospective change, in or affecting
the business or properties of the Company which in your sole judgment makes it
impractical or inadvisable to proceed with the public offering of the Shares or
the purchase of the Option Stock as contemplated by the Prospectus.
(j) The Company shall deliver to you a copy of a letter from
PricewaterhouseCoopers, LLP, addressed to the Company, stating that their review
of the Company's internal accounting controls, to the extent they deemed
necessary in establishing the scope of their examination of the Company's
financial statements as of [_____________________], did not disclose any
weakness in internal controls that they considered to be material weaknesses.
(k) Prior to the Closing Date, and on any later date on
which Option Stock is purchased, you shall have received a certificate, dated
the Closing Date or such later date, as the case may be, signed by the Chief
Executive Officer and Chief Financial Officer of the Company stating that the
respective signers of said certificate have carefully examined the Registration
Statement in the form in which it originally became effective and the Prospectus
contained therein and any amendments or supplements thereto and this Agreement,
and that the statements included in paragraph (b) of this Section 7 are true and
correct.
(l) Prior to the Closing Date, and on any later date on
which Option Stock is purchased, you shall have received a certificate, dated
the Closing Date or such later date, as the case may be, signed by the Secretary
of the Company to the effect that, as of the Closing Date or any later date on
which Option Stock is purchased, as the case may be, the Secretary certifies as
to the accuracy of the Company's charter and bylaws, the resolutions of the
Board of Directors relating to the offering contemplated hereby, the form of
stock certificate representing the Shares, and copies of all communications with
the Commission; as to the execution and delivery of this Agreement; as to the
incumbency and signature of persons signing this Agreement, the Registration
Statement and other related documents; as to the approval of the Shares for
listing on the Nasdaq National Market; as to the Company's compliance with all
agreements and performance or satisfaction of all conditions required hereunder;
as to the consideration received for all outstanding shares of the Company's
Common Stock; and as to such other matters as Underwriters' counsel may
reasonably request.
17
(m) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(n) You shall have been furnished evidence in the usual
written or electronic form from the appropriate authorities of the several
jurisdictions, or other evidence satisfactory to you, of the qualification
referred to in paragraph (f) of Section 6 hereof.
(o) Prior to the Closing Date, the Shares shall have been
duly authorized for inclusion on the Nasdaq National Market, subject only to
official notice of issuance.
(p) On or prior to the Closing Date, X.X. Xxxxxxxxx + Co.,
LLC shall have received from at least ninety-five percent (95%) of the
stockholders of the Company (calculated on a fully-diluted basis), including but
not limited to all directors, executive officers, and five percent (5%)
stockholders, agreements, reasonably satisfactory to X.X. Xxxxxxxxx + Co., LLC,
stating that such person or entity will not, without the prior written consent
of X.X. Xxxxxxxxx + Co., LLC, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by such person or entity or any affiliate of such person or entity or
any person in privity with such person or entity or any affiliate of such person
or entity) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
other shares of Common Stock or any securities convertible into, or exercisable,
or exchangeable for, shares of Common Stock; or publicly announce an intention
to effect any such transaction, for a period of 180 days after the Closing Date.
In case any of the conditions specified in this Section 7 shall not
be fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company; provided,
however, that (i) in the event of such termination, the Company agrees to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company under this Agreement,
including all costs and expenses referred to in paragraph (g) of Section 6
hereof; and (ii) if this Agreement is terminated by you because of any refusal
or failure on the part of the Company to perform any of its obligations or
agreements contained herein, to fulfill any of the conditions herein, or to
comply with any provision hereof other than by reason of a default by the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
transactions contemplated hereby.
8. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
(a) The obligations of the Company to deliver the Shares shall be
subject to the conditions that (i) the Registration Statement shall have become
effective and (ii) no stop
18
order suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
(b) In case either of the conditions specified in paragraph (a) of
this Section 8 shall not be fulfilled, this Agreement may be terminated by the
Company by giving notice to you. Any such termination shall be without liability
of the Company to the Underwriters and without liability of the Underwriters to
the Company; provided, however, that in the event of any such termination the
Company agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company under
this Agreement, including all costs and expenses referred to in paragraph (g) of
Section 6 hereof.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) Subject to the provisions of paragraph (d) of this Section 9,
the Company agrees to indemnify and hold harmless each Underwriter (and any
person participating in the distribution who is deemed to be an underwriter (as
defined in Section 2(11) of the Securities Act) and each person (including each
member or officer thereof), if any, who controls any Underwriter or such person
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages or
liabilities, joint or several (and actions in respect thereof), to which such
indemnified parties or any of them may become subject, under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, and the Company agrees to reimburse each such
Underwriter or any other such indemnified party and each such officer, director
and controlling person for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel) as
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities, or in connection with
any investigation or inquiry of, or other proceeding that may be brought
against, the respective indemnified parties, in each case arising out of or that
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement (including the Prospectus
as part thereof and any Rule 462(b) registration statement) or any
post-effective amendment thereto (including any Rule 462(b) registration
statement) or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstance under which they were
made, not misleading, and (iii) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf of the
Company including, without limitation, slides, videos, films or tape recordings,
used in connection with the marketing of the Shares, including without
limitation, any untrue or alleged untrue statements communicated to securities
analysts employed by the Underwriters; provided, however, that (i) the indemnity
agreement of the Company contained in this paragraph (a) shall not apply to any
such loss, claim, damage, liability or action if such statement or omission was
made in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter expressly for use in any
Preliminary Prospectus or the Registration Statement or
19
the Prospectus or any such amendment thereof or supplement thereto and (ii) the
indemnity agreement contained in this paragraph (a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
such persons) if the person asserting any such loss, claim, damage, liability or
action purchased Shares that are the subject thereof to the extent that any such
loss, claim, damage, liability or action (A) results from the fact that such
Underwriter (or such persons) failed to send or give a copy of the Prospectus
(as amended or supplemented) to such person at or prior to the confirmation of
the sale of such Shares to such person in any case where such delivery is
required by the Securities Act and (B) arises out of or is based upon an untrue
statement or omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and supplemented),
unless such failure resulted from non-compliance by the Company with paragraph
(c) of Section 6 hereof. The indemnity agreements of the Company contained in
this paragraph (a) and the representations and warranties of the Company
contained in Section 2 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery and payment for the Shares.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement, each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the other Underwriters against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject, under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise and to
reimburse each of them for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel)
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities or in connection with
any investigation or inquiry of, or other proceeding that may be brought
against, the respective indemnified parties, in each case arising out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement (including the Prospectus as part
thereof and any Rule 462(b) registration statement) or any post-effective
amendment thereto (including any Rule 462(b) registration statement) or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; or
(ii) any untrue statement or alleged untrue statement of any material fact
contained in any Preliminary Prospectus or the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
thereof or supplement thereto) or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstance under which they were made, not
misleading, in each case to the extent, but only to the extent, that such
statement or omission was made in reliance upon and in conformity with
information furnished as herein stated or otherwise furnished in writing by or
on behalf of such indemnifying Underwriter to the Company expressly for use in
the Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto, and will reimburse, as incurred, all legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. The indemnity agreement of each Underwriter
contained in this paragraph (b) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery and payment for the Shares.
20
(c) Each party indemnified under the provisions of paragraph
(a) or (b) of this Section 9 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against it, in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, such indemnified party will promptly notify any party or parties
from whom indemnification may be sought hereunder of the commencement thereof in
writing. No indemnification provided for in such paragraphs shall be available
to any party who shall fail to give such notice if the party to whom such notice
was not given was unaware of the action, suit, investigation, inquiry or
proceeding to which such notice would have related and was prejudiced by the
failure to give the notice, but the omission to notify such indemnifying party
or parties of any such service or notification shall not relieve such
indemnifying party or parties from any liability that it or they may have to the
indemnified party for contribution or otherwise than on account of such
indemnity agreement. Any indemnifying party or parties against which a claim is
to be made will be entitled, at its own expense, to participate in the defense
of such action, suit, investigation or inquiry of, an indemnified party. Any
indemnifying party shall be entitled, if it so elects within a reasonable time
after receipt of notice from the indemnified party or parties of an action,
suit, investigation or inquiry to which indemnity may be sought, to assume the
entire defense thereof (alone or in conjunction with any other indemnifying
party or parties), at its own expense, in which case such defense shall be
conducted by counsel reasonably satisfactory to the indemnified party or
parties; provided, however, that (i) if the indemnified party or parties has
reasonably concluded that there may be a conflict between the positions of the
indemnifying party or parties and of the indemnified party or parties in
conducting the defense of such action, suit, investigation, inquiry or
proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or parties
shall be entitled to conduct such defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
or parties; and (ii) in any event, the indemnified party or parties shall be
entitled to have counsel chosen by such indemnified party or parties participate
in, but not conduct, the defense. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal
or other expenses (other than the reasonable costs of investigation)
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party has employed such counsel in connection
with the assumption of different or additional legal defenses in accordance with
the proviso to the immediately preceding sentence; or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. If no such notice to assume the
defense of such action has been given within a reasonable time of the
indemnified party's or parties' notice to such indemnifying party or parties,
the indemnifying party or parties shall be responsible for any and all legal or
other expenses incurred by the indemnified party or parties in connection with
the defense of the action, suit, investigation, inquiry or proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to
21
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) referred to in paragraphs (a) and (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by each
of the contributing parties from the offering of the Shares; 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 each of the
contributing parties, on the one hand, and the party to be indemnified, on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares (after deducting the
underwriting discount but before deducting expenses) and the total underwriting
discount received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus, bear to the aggregate public offering price of
the Shares. 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 indemnifying party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable consideration referred to above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this paragraph (d) shall be
deemed to include 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 paragraph (d), no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount applicable to the Shares purchased by the Underwriter hereunder. 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 in this paragraph (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
Each party entitled to contribution agrees that upon the service of
a summons or other initial legal process upon it in any action instituted
against it in respect to which a claim for contribution may be made against
another party or parties under this paragraph (d), it will promptly notify such
party or parties from whom contribution may be sought, but the omission to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it may have hereunder or
otherwise (except as specifically provided in paragraph (c) of this Section 9).
The contribution agreement set forth above shall be in addition to any
liabilities that any indemnifying party may have at common law or otherwise.
(e) No indemnifying party will, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any person who controls such
22
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act is a party to such claim, action, suit or proceeding) unless
such settlement, compromise or consent includes an unconditional release of such
indemnified party and each such controlling person from all liability arising
out of such claim, action, suit or proceeding.
10. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other
obligations under Section 9 of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
paragraph (a) of Section 9 of this Agreement, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the obligations
under this Section 10 and the possibility that such payments might later be held
to be improper; provided, however, that (i) to the extent that any such payment
is ultimately held to be improper, the Underwriters shall promptly refund it;
and (ii) the Underwriters shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
11. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
12. TERMINATION.
(a) In addition to the termination described in Section 7
hereof, this Agreement (except for the provisions of Section 9 hereof) may be
terminated by you by notice to the Company at any time prior to the Closing Date
if: (i) the Company shall have sustained a loss by strike, fire, flood, accident
or other calamity of such a character as to interfere materially with the
conduct of the business and operations of the Company regardless of whether or
not such loss was insured; (ii) trading in the Common Stock shall have been
suspended or trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or limitations on such trading shall have been imposed or limitations on prices
shall have been established on any such exchange or market system; (iii) an
escalation of major hostilities or international conflict involving the United
States or the declaration of war or a national emergency by the United States on
or after the date hereof shall have occurred; (iv) any outbreak of hostilities,
act of terrorism or other national or international calamity or crisis or
material adverse change in economic or political conditions shall have occurred
if the effect of such outbreak, terrorist act, calamity, crisis or change in
economic or political conditions in the financial markets of the United States
would, in your reasonable judgment, make the offering or delivery of the Shares
impracticable; (v) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of, or commencement of
any proceeding or investigation by, any court, legislative body, agency or other
governmental authority shall have occurred that in the Underwriters' reasonable
opinion materially and adversely affects or will materially or adversely affect
the
23
business or operations of the Company; (vi) a banking moratorium shall have been
declared by New York or United States authorities; or (vii) the taking of any
action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs shall have occurred that in your reasonable judgment
has a material adverse effect on the securities markets in the United States.
(b) If this Agreement is terminated pursuant to this Section
12, there shall be no liability of the Company to the Underwriters and no
liability of the Underwriters to the Company; provided, however, that in the
event of any such termination, the Company agrees to indemnify and hold harmless
the Underwriters from all expenses incident to the performance of the
obligations of the Company under this Agreement, including all costs and
expenses referred to in paragraph (g) of Section 6. Notwithstanding any
termination of this agreement, the provisions of Section 9 hereof shall survive
and remain in full force and effect.
13. NOTICES. All communications hereunder shall be in writing and
if sent to the Underwriters shall be mailed or delivered or emailed and
confirmed by letter or telecopied and confirmed by letter to X.X. Xxxxxxxxx +
Co., LLC at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxx
Xxxxxxxx, Esq. with copies to Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx X. Xxxx, Esq., or, if sent to the
Company, shall be mailed or delivered or emailed and confirmed to the Company at
000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 with copies to Xxxxxx Godward LLP,
0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxx, Esq.
14. SUCCESSORS. This agreement shall be to the benefit of and be
binding upon the Company and the Underwriters and, with respect to the
provisions of Section 9 hereof, the several parties (in addition to the Company
and the Underwriters) indemnified under the provisions of said Section 9, and
their respective personal representatives, successors and assigns. Nothing in
this agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this agreement,
or any provisions herein contained. The term "successors and assigns" as herein
used shall not include any purchaser, as such purchaser, of any of the Shares
from the Underwriters.
15. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
16. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of California. Any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal courts of the
United States of America located in the City and County of San Francisco or the
courts of the State of California in each case located in the City and County of
San Francisco (collectively, the "Specified Courts"), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court, as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. 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
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive
24
any objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum.
[INTENTIONALLY LEFT BLANK]
25
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
GENITOPE CORPORATION
By: _______________________________________
Name: Xxx X. Xxxxxx Xx., PhD
Title: Chairman and Chief Executive Officer
Accepted as of the date first above
written:
X.X. XXXXXXXXX + CO., LLC
PUNK, XXXXXX & COMPANY
AS REPRESENTATIVES OF THE UNDERWRITERS
By: X.X. Xxxxxxxxx + Co., llc
By: ________________________________
Name: __________________________
Title: _________________________
26
SCHEDULE 1
UNDERWRITERS
NUMBER OF SHARES
TO BE PURCHASED
UNDERWRITERS FROM THE COMPANY
-------------------------------------------------------------------------------- ----------------------
X.X. Xxxxxxxxx + Co., llc .....................................................
Punk, Xxxxxx & Company
27
EXHIBIT A
Form of Opinion of Cooley Godward on Behalf of the Company
(a) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its properties and
to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company.
(b) The Company has an authorized capitalization as set
forth in the Prospectus under the heading "Capitalization" (as of the date
set forth therein), and all of the outstanding shares of capital stock of
the Company have been duly authorized and are validly issued, fully paid
and non-assessable and conform in all material respects to the description
thereof contained in the Prospectus.
(c) The Shares have been duly authorized and, when issued
and delivered in accordance with the terms of the Underwriting Agreement,
will be validly issued, fully paid and non-assessable, and the issuance of
the Shares will not be subject to any preemptive or similar rights under
the certificate of incorporation or bylaws of the Company, any agreement
or other instrument filed as an exhibit to the Registration Statement or
under the Delaware General Corporation Law.
(d) To our knowledge, the Company does not have any
subsidiaries.
(e) To our knowledge, there is no holder of any shares of
capital stock of the Company that has any rights, that have not been
waived to require registration under the Securities Act of any shares of
capital stock of the Company in connection with the filing of the
Registration Statement.
(f) To our knowledge, there are no rights of any holders of
the shares of capital stock of the Company to require the Company to
register any securities under the Securities Act that are not described in
the Registration Statement and the Prospectus.
(g) The Company has the corporate power and authority to
enter into the Underwriting Agreement. The Underwriting Agreement has been
duly authorized, executed and delivered by the Company.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement will not contravene any provision of applicable law (other than
applicable state securities and blue sky laws, as to which we do not
express an opinion), the certificate of incorporation or
1
bylaws of the Company or, to our knowledge, any agreement or other
instrument filed as an exhibit to the Registration Statement.
(i) No consent, approval, authorization or order of any
court, governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, except such
as may be required by (i) the Securities Act, which have been obtained,
(ii) the rules and regulations of the National Association of Securities
Dealers, Inc., as to which we express no opinion or (iii) the securities
or blue sky laws of the various states in connection with the offer and
sale of the Shares, as to which we express no opinion.
(j) To our knowledge, (i) the Registration Statement has
become effective under the Securities Act, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission; and (ii) the required filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act has been made
in the manner and within the time period required by Rule 424(b).
(k) The Registration Statement and the Prospectus (except
for the financial statements, related notes and financial schedules and
other financial and statistical data derived therefrom, as to which we
express no opinion), comply as to form in all material respects with the
requirements of the Securities Act and Rules.
(l) To our knowledge, there are no statutes, regulations,
contracts or other documents to which the Company is a party or to which
any of the properties of the Company is subject that are required under
the Securities Act to be described in the Registration Statement or the
Prospectus, or to be filed as exhibits to the Registration Statement, that
are not described or filed as required by the Securities Act.
(m) The statements relating to legal matters, documents or
proceedings included (1) in the Prospectus under the captions "Description
of Our Capital Stock", "Shares Eligible for Future Sale" and "Certain
Relationships and Related Transactions" and (2) in the Registration
Statement in Items 14 and 15 in each case fairly summarize the information
called for with respect to such mattersas required by the Securities Act
and Rules.
(n) The Company is not and will not be, after giving effect
to the issuance and sale of the Shares, an "investment company" or a
"company" controlled by an "investment company" within the meaning of such
term under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission promulgated thereunder.
(o) To our knowledge, there are no legal or governmental
proceedings pending or overtly threatened to which the Company is a party
or to which any of the properties of the Company is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described.
2
(p) The Shares have been duly authorized for inclusion in
The Nasdaq National Market upon official notice of issuance.
*****
In the course of the preparation of the Registration Statement and
the Prospectus, we have participated in conferences with officers of the
Company, representatives of its independent public accountants, and
representatives of the Underwriters and their counsel during which the contents
of the Registration Statement and the Prospectus were discussed, and while we
have not independently verified, are not passing upon and assume no
responsibility for the accuracy, completeness or fairness of the Registration
Statement or Prospectus, we advise you that nothing has come to our attention
that causes us to believe that (A) the Registration Statement (except for the
financial statements and financial schedules and other financial and statistical
data derived therefrom, as to which we express no belief) at the time the
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (B) the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data derived therefrom, as to which we express no belief) as of its date or as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
3
EXHIBIT B
Form of Opinion by [______], regulatory counsel to the Company
4
EXHIBIT C
Form of Opinion by Xxxxxx & Xxxxxxx, LLP, patent counsel to the Company
5
EXHIBIT D
Form of Opinion by Bozicevic, Field & Xxxxxxx, LLP, patent counsel to the
Company
6
EXHIBIT E
Form of Opinion by Xxxx, Xxxx, Xxxx & Freidenrich, patent counsel to the Company
7
