_________ Shares of Common Stock
DYNAVAX TECHNOLOGIES CORPORATION
UNDERWRITING AGREEMENT
_______________, 2004
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
XXXXX XXXXXXX & CO.
As Representatives (the "Representatives") of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Dynavax Technologies Corporation, a corporation organized and
existing under the laws of Delaware (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
________ shares (the "Firm Shares") of its common stock, par value $0.001 per
share (the "Common Stock") and, for the sole purpose of covering over-allotments
in connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional ______ shares (the "Additional Shares") of
Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares." The Shares are more fully
described in the Registration Statement and Prospectus referred to below. Bear,
Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") and Deutsche Bank Securities Inc. are acting
as lead managers (the "Lead Managers") in connection with the offering and sale
of the Shares contemplated herein (the "Offering").
The Company also proposes, subject to the terms of this
agreement (this "Agreement"), the applicable rules, regulations and
interpretations of the NASD (as defined below) and all other applicable laws,
rules and regulations, that up to ___% of the Firm Shares (the "Directed
Shares") shall be reserved for sale by the Underwriters to certain officers,
directors, employees and other persons designated by the Company ("Directed
Share Purchasers"). To the extent that sales of Directed Shares are not orally
confirmed for purchase by Directed Share Purchasers by the end of the first day
after the date of this Agreement, the Directed Shares will be offered to the
public as part of the Offering.
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-1
(No. 333-109965), and amendments thereto, and related preliminary prospectuses
for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the Shares which registration statement, as so amended,
has been declared effective by the Commission and copies of which have
heretofore been delivered to the Underwriters. The registration statement, as
amended at the time it became effective, including the prospectus, financial
statements, schedules, exhibits and other information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
or 434(d) under the Securities Act, is hereinafter referred to as the
"Registration Statement." If the Company has filed or is required pursuant to
the terms hereof to file a registration statement pursuant to Rule 462(b) under
the Securities Act registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), then, unless otherwise specified, any reference herein
to the term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Shares have been registered under the Securities Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be registered under the Securities Act with the filing of such Rule 462(b)
Registration Statement. No stop order suspending the effectiveness of either the
Registration Statement or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or threatened
by the Commission. The Company, if required by the Securities Act and the rules
and regulations of the Commission (the "Rules and Regulations"), proposes to
file the Prospectus with the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)"). The prospectus, in the form in which it is to be
filed with the Commission pursuant to Rule 424(b), or, if the prospectus is not
to be filed with the Commission pursuant to Rule 424(b), the prospectus in the
form included as part of the Registration Statement at the time the Registration
Statement became effective, is hereinafter referred to as the "Prospectus,"
except that if any revised prospectus or prospectus supplement shall be provided
to the Underwriters by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule
424(b)), the term "Prospectus" shall also refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission pursuant to Rule 424 under the Securities Act is hereafter
called a "Preliminary Prospectus." Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any wrapper or supplement thereto prepared in connection with the
distribution of Directed Shares in any jurisdiction. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a Preliminary Prospectus and the Prospectus, or any amendments or supplements to
any of the foregoing, shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
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(b) At the time of the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or the
effectiveness of any post-effective amendment to the Registration Statement,
when the Prospectus is first filed with the Commission pursuant to Rule 424(b)
or Rule 434 under the Securities Act ("Rule 434"), when any supplement to or
amendment of the Prospectus is filed with the Commission and at the Closing Date
and the Additional Closing Date, if any (as hereinafter respectively defined),
the Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and the Rules and Regulations and
did not and will not contain an untrue statement of a material fact and did not
and will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus or
any related Preliminary Prospectus in light of the circumstances under which
they were made, not misleading. When any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
under the Securities Act) and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act and the Rules and
Regulations and did not contain an 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 light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434 and the Prospectus shall not be
"materially different," as such term is used in Rule 434, from the Prospectus
included in the Registration Statement at the time it became effective. No
representation and warranty is made in this subsection (b), however, with
respect to any information contained in or omitted from the Registration
Statement or the Prospectus or any related Preliminary Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Lead Managers specifically for use therein. The parties
acknowledge and agree that such information provided by or on behalf of any
Underwriter consists solely of the material included in paragraphs ___, ___ and
___ under the caption "Underwriting" in the Prospectus.
(c) Each of Ernst & Young LLP and
PricewaterhouseCoopers, who have certified certain financial statements and
supporting schedules and information of the Company that are included in the
Registration Statement and the Prospectus, whose reports appear in the
Registration Statement and the Prospectus and who have delivered the initial
letters referred to in Section 6(e) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations. Except as
described in the Registration Statement and the Prospectus and as preapproved in
accordance with the requirements set forth in Section 10A of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), Ernst & Young LLP has not
engaged in any "prohibited activities" (as defined in Section 10A of the
Exchange Act) on behalf of the Company.
(d) Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus,
except as disclosed in the Registration Statement and the Prospectus, the
Company has not declared, paid or made any dividends or
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other distributions of any kind on or in respect of its capital stock and there
has been no material adverse change or any development involving a prospective
material adverse change, whether or not arising from transactions in the
ordinary course of business, in or affecting (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and its sole subsidiary, Dynavax Asia
Pte., Ltd. ("Dynavax Asia" or the Subsidiary"), taken as a whole; (ii) the
long-term debt or capital stock of the Company or its Subsidiary; or (iii) the
Offering or consummation of any of the other transactions contemplated by this
Agreement, the Registration Statement or the Prospectus (a "Material Adverse
Change"). Since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, neither the Company nor its
Subsidiary has incurred or undertaken any liabilities or obligations, whether
direct or indirect, liquidated or contingent, matured or unmatured, or entered
into any transactions, including any acquisition or disposition of any business
or asset, which are material to the Company and the Subsidiary taken as a whole,
except for liabilities, obligations and transactions which are disclosed in the
Registration Statement and the Prospectus.
(e) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the column
headed "Actual" under the caption "Capitalization" and, after giving effect to
the Offering and the other transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, including the conversion or exchange
of Ordinary Shares of Dynavax Asia into shares of capital stock of the Company
as set forth in that certain Stock Purchase Agreement and as described in the
Registration Statement and the Prospectus (the "Dynavax Asia Conversion"), will
be as set forth in the column headed "Pro Forma As Adjusted" under the caption
"Capitalization." All of the issued and outstanding shares of capital stock of
the Company are fully paid and non-assessable and have been duly and validly
authorized and issued, in compliance with all applicable state, federal and
foreign securities laws and not in violation of or subject to any preemptive or
similar right that does or will entitle any person, upon the issuance or sale of
any security, to acquire from the Company or the Subsidiary any Common Stock or
other security of the Company or the Subsidiary or any security convertible
into, or exercisable or exchangeable for, Common Stock or any other such
security (any "Relevant Security"), except for such rights as may have been
fully satisfied or waived prior to the effectiveness of the Registration
Statement. All of the shares of capital stock of the Company to be issued in the
Dynavax Asia Conversion will be, upon issuance, fully paid and non-assessable
and duly and validly authorized and issued, in compliance with all applicable
state, federal and foreign securities laws and not in violation of or subject to
any preemptive or similar right that does or will entitle any person, upon the
issuance or sale of any security, to acquire from the Company or the Subsidiary
any Relevant Security.
(f) The Shares have been duly and validly
authorized and, when delivered in accordance with this Agreement, will be duly
and validly issued, fully paid and non-assessable, will have been issued in
compliance with all applicable state, federal and foreign securities laws and
will not have been issued in violation of or subject to any preemptive or
similar right that does or will entitle any person to acquire any Relevant
Security from the Company or the Subsidiary upon issuance or sale of Shares in
the Offering, other than the Dynavax Asia Conversion. The Common Stock and the
Shares conform to the descriptions thereof contained in the Registration
Statement and the Prospectus. Except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor the Subsidiary has
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outstanding warrants, options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, or any contracts or commitments to issue
or sell, any Relevant Security.
(g) Dynavax Asia is the only subsidiary of the
Company within the meaning of Rule 405 under the Securities Act (subject, in the
case of Dynavax Asia, to the consummation of the Dynavax Asia Conversion).
Except for the Subsidiary, the Company holds no ownership or other interest,
nominal or beneficial, direct or indirect, in any corporation, partnership,
joint venture or other business entity. All of the issued shares of capital
stock of or other ownership interests in the Subsidiary have been duly and
validly authorized and issued in compliance with all applicable state, federal
and foreign securities laws, and are fully paid and non-assessable and (with
respect to the capital stock of Dynavax Asia, following the Dynavax Asia
Conversion) are owned directly or indirectly by the Company free and clear of
any lien, charge, mortgage, pledge, security interest, claim, or other
encumbrance or restriction of any kind whatsoever (any "Lien").
(h) Each of the Company and the Subsidiary has
been duly organized and is validly existing as a corporation, partnership or
limited liability company in good standing under the laws of its jurisdiction of
organization. Each of the Company and the Subsidiary has all requisite power and
authority to carry on its business as it is currently being conducted and as
described in the Prospectus, and to own, lease and operate its respective
properties. Each of the Company and the Subsidiary is duly qualified to do
business and is in good standing as a foreign corporation, partnership or
limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate)
could not reasonably be expected to have a material adverse effect on (i) the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and the Subsidiary,
taken as a whole; (ii) the long-term debt or capital stock of the Company or the
Subsidiary; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Prospectus (any such effect being a "Material Adverse Effect").
(i) Each of the Company and the Subsidiary has
all necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses, filings and permits of, with and from all judicial,
regulatory and other legal or governmental agencies and bodies and all third
parties, foreign and domestic (collectively, the "Consents"), to own, lease and
operate its properties and conduct its business as it is now being conducted and
as disclosed in the Registration Statement and the Prospectus, and each such
Consent is valid and in full force and effect, and neither the Company nor the
Subsidiary has received notice of any investigation or proceedings which results
in or, if decided adversely to the Company or the Subsidiary, could reasonably
be expected to result in, the revocation of, or imposition of a materially
burdensome restriction on, any Consent. Each of the Company and the Subsidiary
is in compliance with all applicable laws, rules, regulations, ordinances,
directives, judgments, decrees and orders, foreign and domestic, except where
failure to be in compliance could not reasonably be expected to have a Material
Adverse Effect. No Consent contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the Prospectus.
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(j) The Company has full right, power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus. This Agreement and the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus
have been duly and validly authorized by the Company. This Agreement has been
duly and validly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(k) The execution, delivery, and performance of
this Agreement and consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus do not and will not (i)
conflict with, require consent under or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Subsidiary pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement, instrument, franchise, license
or permit to which the Company or the Subsidiary is a party or by which the
Company or the Subsidiary or their respective properties, operations or assets
may be bound or (ii) violate or conflict with any provision of the certificate
or articles of incorporation, by-laws or other organizational documents of the
Company or the Subsidiary, or (iii) violate or conflict with any law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, domestic or foreign,
except (in the case of clauses (i) and (iii) above) as could not reasonably be
expected to have a Material Adverse Effect.
(l) No Consent of, with or from any judicial,
regulatory or other legal or governmental agency or body or any third party,
foreign or domestic, is required for the execution, delivery and performance of
this Agreement or consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered
hereunder, except the registration under the Securities Act of the Shares, which
has become effective, and such Consents as may be required under state
securities or blue sky laws or the by-laws and rules of the National Association
of Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution of the Shares by the Underwriters, each of which has been obtained
and is in full force and effect.
(m) Except as disclosed in the Registration
Statement and the Prospectus, there is no judicial, regulatory, arbitral or
other legal or governmental proceeding or other litigation or arbitration,
domestic or foreign, pending to which the Company or the Subsidiary is a party
or of which any property, operations or assets of the Company or the Subsidiary
is the subject which, individually or in the aggregate, if determined adversely
to the Company or the Subsidiary, could reasonably be expected to have a
Material Adverse Effect; to the Company's knowledge, no such proceeding,
litigation or arbitration is threatened or contemplated; and the defense of all
such proceedings, litigation and arbitration against or
6
involving the Company or the Subsidiary could not reasonably be expected to have
a Material Adverse Effect.
(n) The financial statements and pro forma data,
including the notes thereto, and the supporting schedules included in the
Registration Statement and the Prospectus present fairly in all material
respects the financial position as of the dates indicated and the cash flows and
results of operations for the periods specified of the Company in the
Registration Statement and the Prospectus; except as otherwise stated in the
Registration Statement and the Prospectus, said financial statements have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved; and
the supporting schedules included in the Registration Statement and the
Prospectus present fairly in all material respects the information required to
be stated therein. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The other financial and
statistical information included in the Registration Statement and the
Prospectus present fairly in all material respects the information included
therein and have been prepared on a basis consistent with that of the financial
statements that are included in the Registration Statement and the Prospectus
and the books and records of the respective entities presented therein.
(o) There are no pro forma or as adjusted
financial statements which are required to be included in the Registration
Statement and the Prospectus in accordance with Regulation S-X which have not
been included as so required.
(p) The statistical, industry-related and
market-related data included in the Registration Statement and the Prospectus
are based on or derived from sources which the Company reasonably and in good
faith believes are reliable and accurate, and such data agree with the sources
from which they are derived.
(q) The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act, the Shares have been approved for quotation
on the NASDAQ (as defined in Section 11(b) below), subject to notice of
issuance, and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or the quotation of the Shares on the NASDAQ, nor has the Company received
any notification that the Commission or the NASDAQ is contemplating terminating
such registration or quotation.
(r) The Company and the Subsidiary maintain a
system of internal accounting and other controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
United States 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 accounting for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(s) Neither the Company nor any of its
affiliates (within the meaning of Rule 144 under the Securities Act and
including Dynavax Asia) (each, an "Affiliate" and
7
collectively, the "Affiliates") has taken, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(t) Neither the Company nor any of its
Affiliates has, prior to the date hereof, made any offer or sale of any
securities which could be "integrated" for purposes of the Securities Act or the
Rules and Regulations with the offer and sale of the Shares pursuant to the
Registration Statement. Except as disclosed in the Registration Statement and
the Prospectus, neither the Company nor any Affiliate has sold or issued any
Relevant Security during the six-month period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than shares of Common Stock
issued pursuant to employee benefit plans, qualified stock option plans or the
employee compensation plans or pursuant to outstanding options, rights or
warrants as described in the Registration Statement and the Prospectus.
(u) Except as disclosed in the Registration
Statement and the Prospectus, no holder of any Relevant Security has any rights
to require registration of any Relevant Security as part or on account of, or
otherwise in connection with, the offer and sale of the Shares contemplated
hereby, and any such rights so disclosed have either been fully complied with by
the Company or effectively waived by the holders thereof, and any such waivers
remain in full force and effect.
(v) The Company is not and, at all times up to
and including consummation of the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act"), and is not and will not be an entity
"controlled" by an "investment company" within the meaning of the 1940 Act.
(w) There are no contracts or other documents
(including, without limitation, any voting agreement), which are required to be
described in the Registration Statement and the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or the Rules and Regulations
and which have not been so described or filed.
(x) No relationship, direct or indirect, exists
between or among any of the Company or any Affiliate, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
Affiliate, on the other hand, which is required by the Securities Act or the
Rules and Regulations to be described in the Registration Statement or the
Prospectus which is not so described and described as required. There are no
outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by the Company to or
for the benefit of any of the officers or directors of the Company or any of
their respective family members, except as disclosed in the Registration
Statement and the Prospectus. The Company has not, in violation of the
Xxxxxxxx-Xxxxx Act, directly or indirectly, including through a 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 of the Company.
8
(y) Except as disclosed in the Registration
Statement and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person that would give rise to a
valid claim against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus
or, to the Company's knowledge, any arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of its officers,
directors, stockholders, partners, employees, Subsidiary or Affiliates that may
affect the Underwriters' compensation as determined by the NASD. No affiliation
or association between any NASD member and any of the Company's officers,
directors or 5% or greater securityholders exists except as set forth in the
Registration Statement or the Prospectus.
(z) Each of the Company and the Subsidiary owns
or leases all such properties as are necessary to the conduct of its business as
presently operated and as proposed to be operated as described in the
Registration Statement and the Prospectus. The Company and the Subsidiary have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of all Liens except such as are described in the Registration Statement
and the Prospectus or such as do not (individually or in the aggregate)
materially affect the value of such property or materially interfere with the
use made or proposed to be made of such property by the Company and the
Subsidiary; and any real property and buildings held under lease or sublease by
the Company and the Subsidiary are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to, and do not
materially interfere with, the use made and proposed to be made of such property
and buildings by the Company and the Subsidiary. Neither the Company nor the
Subsidiary has received any notice of any claim adverse to its ownership of any
real or personal property or of any claim against the continued possession of
any real property, whether owned or held under lease or sublease by the Company
or the Subsidiary.
(aa) Each of the Company and the Subsidiary (i)
owns or possesses adequate right to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses, formulae, customer lists, and know-how and
other intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures,
"Intellectual Property") necessary for the conduct of their respective
businesses as being conducted and as described in the Registration Statement and
Prospectus, and (ii) except as disclosed in [Section ____, paragraph ___ of the
Prospectus], have no reason to believe that the conduct of their respective
businesses does or will conflict with, and have not received any notice of any
claim of conflict with, any such right of others. All material technical
information developed by and belonging to the Company or the Subsidiary which
has not been patented has been kept confidential. Except as disclosed in
[Section ___, paragraph ___ of the Prospectus], there is no infringement by
third parties of any such Intellectual Property; there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's or the Subsidiary's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; and there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company or the Subsidiary infringes or otherwise violates any patent,
trademark,
9
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any other fact which would form a reasonable basis for any such
claim.
(bb) The Company and the Subsidiary maintain or
are covered by insurance in such amounts and covering such risks as the Company
reasonably considers adequate for the conduct of its business and the value of
its properties and as is customary for companies engaged in similar businesses
in similar industries, all of which insurance is in full force and effect,
except where the failure to maintain such insurance could not reasonably be
expected to have a Material Adverse Effect. There are no material claims by the
Company or the Subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause. The Company has no reason to believe that it will not be able to
renew its existing insurance as and when such coverage expires or will be able
to obtain replacement insurance adequate for the conduct of the business and the
value of its properties at a cost that could not reasonably be expected to have
a Material Adverse Effect.
(cc) The Company has in effect insurance covering
the Company, its directors, officers and the Underwriters for liabilities or
losses arising in connection with this Offering, including, without limitation,
liabilities or losses arising under the Securities Act, the Exchange Act, the
Rules and Regulations and applicable foreign securities laws, which the Company
reasonably considers adequate for such purposes.
(dd) Each of the Company and the Subsidiary has
accurately prepared and timely filed all federal, state, foreign and other tax
returns that are required to be filed by it and has paid or made provision for
the payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
Company or the Subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax
return). No deficiency assessment with respect to a proposed adjustment of the
Company's or the Subsidiary' federal, state, local or foreign taxes is pending
or, to the Company's knowledge, threatened. The accruals and reserves on the
books and records of the Company and the Subsidiary in respect of tax
liabilities for any taxable period not finally determined have been made in
compliance with U.S. generally accepted accounting principles for any such
period and, since December 31, 2002, the Company and the Subsidiary have not
incurred any liability for taxes other than in the ordinary course of its
business. There is no tax lien (other than for current taxes not yet due and
payable), whether imposed by any federal, state, foreign or other taxing
authority, outstanding against the assets, properties or business of the Company
or the Subsidiary.
(ee) No labor disturbance by the employees of the
Company or the Subsidiary exists or, to the Company's knowledge, is imminent and
the Company is not aware of any existing or imminent labor disturbances by the
employees of any of its or the Subsidiary's principal suppliers, manufacturers',
customers or contractors, which, in either case (individually or in the
aggregate), could reasonably be expected to have a Material Adverse Effect.
(ff) No "prohibited transaction" (as defined in
either Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and
10
published interpretations thereunder ("ERISA") or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the "Code")), "accumulated
funding deficiency" (as defined in Section 302 of ERISA) or other event of the
kind described in Section 4043(b) of ERISA (other than events with respect to
which the 30-day notice requirement under Section 4043 of ERISA has been waived)
has occurred with respect to any employee benefit plan for which the Company or
the Subsidiary would have any liability which could (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect; each
employee benefit plan for which the Company or the Subsidiary would have any
liability is in compliance in all material respects with applicable law,
including (without limitation) ERISA and the Code; the Company has not incurred
and does not expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from any "pension plan"; and each plan for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such
qualification.
(gg) There has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission or other
release of any kind of toxic or other wastes or other hazardous substances by,
due to, or caused by the Company or the Subsidiary (or, to the Company's
knowledge, any other entity for whose acts or omissions the Company is or may be
liable) upon any other property now or previously owned or leased by the Company
or the Subsidiary, or upon any other property, which would be a violation of or
give rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit relating to pollution or protection of human health
and the environment ("Environmental Law"), except for violations and liabilities
that would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. There has been no disposal discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which the Company or the Subsidiary has knowledge. Neither the
Company nor the Subsidiary has agreed to assume, undertake or provide
indemnification for any liability of any other person under any Environmental
Law, including any obligation for cleanup or remedial action, except as would
not, individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect. There is no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial action, claim or notice of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or the Subsidiary.
(hh) Neither the Company, the Subsidiary nor, to
the Company's knowledge, any of its employees or agents has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States of
any jurisdiction thereof.
(ii) Neither the Company nor the Subsidiary (i)
is in violation of its certificate or articles of incorporation, by-laws or
other organizational documents, (ii) is in default under, and no event has
occurred which, with notice or lapse of time or both, would constitute a default
under or result in the creation or imposition of any lien, charge or encumbrance
upon any of its property or assets pursuant to, any indenture, mortgage, deed of
11
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject or
(iii) is in violation in any respect of any law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or other legal
or governmental agency or body, foreign or domestic, except (in the case clauses
(ii) and (iii) above) violations or defaults that could not (individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect and
except (in the case of clause (ii) alone) for any lien, charge or encumbrance
disclosed in the Registration Statement and the Prospectus.
(jj) The Registration Statement, the Prospectus
and any Preliminary Prospectus comply in all material respects, and any further
amendments or supplements thereto will comply in all material respects, with all
applicable laws, rules, regulations, ordinances, directives, judgments, decrees
and orders of foreign jurisdictions in which Directed Shares are offered or the
Prospectus or any Preliminary Prospectus, as amended or supplemented, if
applicable, may be distributed in connection with therewith; and no Consent of,
from or with any judicial, regulatory or other legal or governmental agency or
body, other than such as have been obtained, is necessary under the any such
law, rule, regulation, ordinance, directive, judgment, decree or order.
(kk) The Company has not offered, or caused the
Underwriters to offer, Directed Shares to any person with the intention of
unlawfully influencing (i) a customer or supplier of the Company or the
Subsidiary to alter the customer's or supplier's level or type of business with
the Company or the Subsidiary or (ii) a trade journalist or publication to write
or publish favorable information about the Company, the Subsidiary or its
products.
(ll) The Company's board of directors has validly
appointed an audit committee whose composition satisfies the requirements of the
Rules and Regulations and current Rule 4350(d)(2) of the NASD Rules. The audit
committee has adopted a charter that satisfies the requirements of the Rules and
Regulations, and current Rule 4350(d)(1) of the rules of the NASD.
(mm) The Company's auditors and the audit
committee of the board of directors of the Company (or persons fulfilling the
equivalent function) are not aware of (i) any significant deficiency in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial data nor
any material weaknesses in internal controls; (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal controls.
(nn) The Company is in compliance with applicable
provisions of the Xxxxxxxx-Xxxxx Act that are effective and is actively taking
steps to ensure that it will be in compliance with other applicable provisions
of the Xxxxxxxx-Xxxxx Act upon the effectiveness of such provisions.
(oo) Except as disclosed in the Registration and
the Prospectus, there are no material outstanding guarantees of the Company or
the Subsidiary.
12
Any certificate signed by or on behalf of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, the Company agrees to sell to each Underwriter
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at a purchase price per share of $_______, the number of Firm Shares
set forth opposite the respective name on Schedule I hereto together with any
additional number of Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and
delivery of certificates representing, the Firm Shares shall be made at the
office of Xxxxxx & Xxxxxxx LLP ("Underwriters' Counsel"), 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, or at such other place as shall be agreed upon by
the Lead Managers and the Company, at 10:00 A.M., New York City time, on the
third or (as permitted under Rule 15c6-1 under the Exchange Act) fourth business
day (unless postponed in accordance with the provisions of Section 9 hereof)
following the date of the effectiveness of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A under the Securities Act, the
third or (as permitted under Rule 15c6-1 under the Exchange Act) fourth business
day after the determination of the public offering price of the Shares), or such
other time not later than ten business days after such date as shall be agreed
upon by the Lead Managers and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
Payment of the purchase price for the Firm Shares shall be
made by wire transfer in same day funds to the Company upon delivery of
certificates for the Firm Shares to the Representatives through the facilities
of The Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Firm Shares shall be registered in such name
or names and shall be in such denominations as the Lead Managers may request at
least two business days before the Closing Date. The Company will permit the
Lead Managers to examine and package such certificates for delivery at least one
full business day prior to the Closing Date.
(c) In addition, on the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company hereby grants
to the Underwriters, acting severally and not jointly, the option to purchase up
to ______ Additional Shares at the same purchase price per share to be paid by
the Underwriters for the Firm Shares as set forth in Section 2(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to time, in
whole or in part on one or more occasions, on or before the thirtieth day
following the date of the Prospectus, by written notice from the Lead Managers
to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by Bear Xxxxxxx, when the Additional Shares are to be
delivered (any such date and time being
13
herein sometimes referred to as the "Additional Closing Date"); provided,
however, that no Additional Closing Date shall occur earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised nor later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 9 hereof).
Upon any exercise of the option as to all or any portion of the Additional
Shares, each Underwriter, acting severally and not jointly, agrees to purchase
from the Company the number of Additional Shares that bears the same proportion
of the total number of Additional Shares then being purchased as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to the total
number of Firm Shares that the Underwriters have agreed to purchased hereunder,
subject, however, to such adjustments to eliminate fractional shares as Bear
Xxxxxxx in its sole discretion shall make.
(d) Payment of the purchase price for, and
delivery of certificates representing, the Additional Shares shall be made at
the office of Underwriters' Counsel, or at such other place as shall be agreed
upon by the Lead Managers and the Company, at 10:00 A.M., New York City time, on
the Additional Closing Date (unless postponed in accordance with the provisions
of Section 9 hereof), or such other time as shall be agreed upon by Bear Xxxxxxx
and the Company.
Payment of the purchase price for the Additional Shares shall
be made by wire transfer in same day funds to the Company upon delivery of
certificates for the Additional Shares to the Representatives through the
facilities of The Depository Trust Company for the respective accounts of the
several Underwriters. Certificates for the Additional Shares shall be registered
in such name or names and shall be in such denominations as the Lead Managers
may request at least two business days before the Additional Closing Date. The
Company will permit the Lead Managers to examine and package such certificates
for delivery at least one full business day prior to the Additional Closing
Date.
3. Offering. Upon authorization of the release of the
Firm Shares by the Lead Managers, the Underwriters propose to offer the Shares
for sale to the public upon the terms and conditions set forth in the
Prospectus.
4. Covenants of the Company. The Company covenants and
agrees with the Underwriters that:
(a) The Registration Statement and any
amendments thereto have been declared effective, and if Rule 430A is used or the
filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434,
the Company will file the Prospectus (properly completed if Rule 430A has been
used) pursuant to Rule 424(b) within the prescribed time period and will provide
evidence satisfactory to the Lead Managers of such timely filing. If the Company
elects to rely on Rule 434, the Company will prepare and file a term sheet that
complies with the requirements of Rule 434, and the Prospectus shall not be
"materially different" (as such term is used in Rule 434) from the Prospectus
included in the Registration Statement at the time it became effective.
The Company will notify the Lead Managers immediately (and, if
requested by the Lead Managers, will confirm such notice in writing) (i) when
the Registration Statement and
14
any amendments thereto become effective, (ii) of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) of the Company's intention
to file or prepare any supplement or amendment to the Registration Statement or
the Prospectus, (iv) of the mailing or the delivery to the Commission for filing
of any amendment of or supplement to the Registration Statement or the
Prospectus, including but not limited to a filing under Rule 462(b) under the
Securities Act, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of the initiation, or the threatening, of any proceedings
therefor, it being understood that the Company shall make every reasonable
effort to avoid the issuance of any such stop order, (vi) of the receipt of any
comments from the Commission, and (vii) of 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 initiation or threatening of any proceeding
for that purpose. If the Commission shall propose or enter a stop order at any
time, the Company will make every reasonable effort to prevent the issuance of
any such stop order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that
differs from the prospectus on file at the time of the effectiveness of the
Registration Statement to which the Lead Managers shall object in writing after
being timely furnished in advance a copy thereof. The Company will provide the
Lead Managers with copies of all such amendments, filings and other documents a
sufficient time prior to any filing or other publication thereof to permit the
Lead Managers a reasonable opportunity to review and comment thereon.
(b) The Company shall comply with the Securities
Act to permit completion of the distribution as contemplated in this Agreement,
the Registration Statement and the Prospectus. If at any time when a prospectus
relating to the Shares is required to be delivered under the Securities Act in
connection with the sales of Shares, any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would, in the judgment
of the Underwriters or the Company, include an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
existing at the time of delivery to the purchaser, not misleading, or if to
comply with the Securities Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement, the Company will notify the Lead Managers promptly and prepare and
file with the Commission, subject to Section 4(a) hereof, an appropriate
amendment or supplement (in form and substance satisfactory to the Lead
Managers) which will correct such statement or omission and will use all
reasonable efforts to have any amendment to the Registration Statement declared
effective as soon as possible.
(c) The Company will promptly deliver to each of
the Representatives and Underwriters' Counsel a signed copy of the Registration
Statement, as initially filed and all amendments thereto, including all consents
and exhibits filed therewith, and will maintain in the Company's files manually
signed copies of such documents for at least five years after the date of
filing. The Company will promptly deliver to each of the Underwriters such
number of copies of any Preliminary Prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
the Representatives may reasonably request. On the business day immediately
following the date of this Agreement and from time to time
15
thereafter, the Company will furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as the Representatives may
reasonably request.
(d) The Company consents to the use and delivery
of the Preliminary Prospectus by the Underwriters in accordance with Rule 430
and Section 5(b) of the Securities Act.
(e) The Company will use all reasonable efforts,
in cooperation with the Lead Managers, at or prior to the time of effectiveness
of the Registration Statement, to qualify the Shares for offering and sale under
the securities laws relating to the offering or sale of the Shares of such
jurisdictions, domestic or foreign, as the Lead Managers may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(f) Prior to the Closing Date, the Company will
furnish the Underwriters as soon as they have been prepared by or are available
to the Company a copy of any unaudited quarterly financial statements of the
Company for any period subsequent to the period covered by the most recent
financial statements in the Registration Statement and the Prospectus.
(g) The Company will make generally available to
its security holders and to the Underwriters as soon as practicable, but in any
event not later than twelve months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings
statement of the Company and the Subsidiary (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158).
(h) During the period of 180 days from the date
of the Prospectus, without the prior written consent of the Lead Managers the
Company (i) will not, directly or indirectly, issue, offer, sell, agree to
issue, offer or sell short, solicit offers to purchase, grant any call option,
warrant or other right to purchase, purchase any put option or other right to
sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any
announcement of any of the foregoing, (ii) will not establish or increase any
"put equivalent position" or liquidate or decrease any "call equivalent
position" (in each case within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder) with respect to any Relevant
Security, and (iii) will not otherwise enter into any swap, derivative or other
transaction or arrangement that transfers to another, in whole or in part, any
economic consequence of ownership of a Relevant Security, whether or not such
transaction is to be settled by delivery of Relevant Securities, other
securities, cash or other consideration; and the Company will obtain an
undertaking in substantially the form of Annex II hereto from each of its
stockholders (including each stockholder receiving shares of capital stock of
the Company in the Dynavax Asia Conversion) not to engage in any of the
aforementioned transactions on their own behalf, other than the sale of Shares
as contemplated by this Agreement and the Company's issuance of Common Stock
upon (i) the conversion or exchange of convertible or exchangeable securities
outstanding on the date hereof; (ii) the exercise of currently outstanding
options; (iii) the exercise of currently outstanding warrants; and (iv) the
grant and exercise of options under, or the
16
issuance and sale of shares pursuant to, employee stock option plans in effect
on the date hereof, each as described in the Registration Statement and the
Prospectus. The Company will not file a registration statement under the
Securities Act in connection with any transaction by the Company or any person
that is prohibited pursuant to the foregoing, except for registration statements
on Form S-8 relating to employee benefit plans or Form S-4 relating to corporate
reorganizations or other transactions under Rule 145.
(i) To the extent not otherwise available on
XXXXX, during the period of five years from the effective date of the
Registration Statement, the Company will furnish to the Representatives copies
of all reports or other communications (financial or other) furnished to its
security holders or from time to time published or publicly disseminated by the
Company, and will deliver to the Representatives (i) as soon as they are
available, copies of any reports, financial statements and proxy or information
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as the Representatives may from time to time reasonably request
(such financial information to be on a consolidated basis to the extent the
accounts of the Company and the Subsidiary are consolidated in reports furnished
to its security holders generally or to the Commission); provided that, prior to
its public dissemination by the Company, the Representatives agree to keep such
information confidential (provided the Company has identified such information
as such) (and to cause their employees and agents to do the same).
(j) The Company will apply the net proceeds from
the sale of the Shares as set forth under the caption "Use of Proceeds" in the
Prospectus and shall not, during the three-year period beginning on the date of
the Prospectus, invest or otherwise use the proceeds in such a manner that would
require the Company or the Subsidiary to register as an "investment company"
under the 1940 Act.
(j) The Company will use all reasonable efforts
to list the Shares for quotation on the NASDAQ.
(k) The Company, during the period when the
Prospectus is required to be delivered under the Securities Act, will file all
documents required to be filed with the Commission pursuant to the Securities
Act and the Rules and Regulations within the time periods required thereby.
(l) The Company will use all reasonable efforts
to do and perform all things required to be done or performed under this
Agreement by the Company prior to the Closing Date or the Additional Date, as
the case may be, and to satisfy all conditions precedent to the delivery of the
Firm Shares and the Additional Shares.
(m) The Company will comply with all applicable
securities and other applicable laws, rules and regulations in each foreign
jurisdiction in which the Directed Shares are offered.
(n) The Company hereby agrees that it will
ensure that the Directed Shares will be restricted as required by the NASD or
NASD rules from sale, transfer,
17
assignment, pledge or hypothecation for a period of three months following the
date of this Agreement. At the request of the Lead Managers, the Company will
direct the transfer agent to place a stop transfer restriction upon such
securities for such period of time.
(o) The Company will not take, and will cause
its Affiliates not to take, directly or indirectly, any action which constitutes
or is designed to cause or result in, or which could reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Shares.
(p) The Company will establish and comply with
the "disclosure controls and procedures" (as defined in Rule 13a-15 of the
Exchange Act) at the time the Company becomes subject to such requirements.
(q) The Company will comply with any changes to
audit committee composition requirements under the Rules and Regulations and the
NASD Rules at the time the Company becomes subject to such requirements.
5. Payment of Expenses. Whether or not the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus
are consummated or this Agreement is terminated, the Company hereby agrees to
pay all costs and expenses incident to the performance of its obligations
hereunder, including the following: (i) all expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any and all amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the
Securities Act and the Offering; (iii) the cost of producing this Agreement and
any agreement among Underwriters, blue sky survey, closing documents and other
instruments, agreements or documents (including any compilations thereof) in
connection with the Offering; (iv) all expenses in connection with the
qualification of the Shares for offering and sale under state or foreign
securities or blue sky laws as provided in Section 4(e) hereof and any offering
of Directed Shares in outside the United States), including the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification or offering and in connection with any blue sky survey; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, securing any required review by the
NASD of the terms of the Offering; (vi) all fees and expenses in connection with
listing the Shares on the NASDAQ; (vii) all travel expenses of the Company's
officers and employees and any other expense of the Company incurred in
connection with attending or hosting meetings with prospective purchasers of the
Shares; (viii) any stock transfer taxes incurred in connection with this
Agreement or the Offering; and (ix) any reasonable expenses (including, without
limitation, legal expenses) incurred by the Underwriters in connection with any
release, or any effort by the Company or any Directed Share Purchaser to seek
the release, of any of the Directed Shares from the restrictions referred to in
Section 4(n) above. The Company also will pay or cause to be paid: (x) the cost
of preparing stock certificates representing the Shares; (y) the cost and
charges of any transfer agent or registrar for the Shares; and (z) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 5. It is
understood, however, that except as provided in this Section, and Sections 7, 8
and 11 hereof, the Underwriters will pay all of their
18
own costs and expenses, including the fees of their counsel and stock transfer
taxes on resale of any of the Shares by them. Notwithstanding anything to the
contrary in this Section 5, in the event that this Agreement is terminated
pursuant to Section 6 or 11(b) hereof, or subsequent to a Material Adverse
Change, the Company will pay all reasonable out-of-pocket expenses of the
Underwriters (including but not limited to reasonable fees and disbursements of
counsel to the Underwriters) incurred in connection herewith.
6. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Firm Shares and the
Additional Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company herein contained, as of the date
hereof and as of the Closing Date (for purposes of this Section 6 "Closing Date"
shall refer to the Closing Date for the Firm Shares and any Additional Closing
Date, if different, for the Additional Shares), to the absence from any
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 of any
misstatement or omission, to the performance by the Company of its obligations
hereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become
effective and all necessary regulatory or stock exchange approvals shall have
been received not later than [if pricing pursuant to Rule 430A: 5:30 P.M., New
York time, on the date of this Agreement] [if pricing pursuant to a pricing
amendment: 12:00 P.M., New York time on the date an amendment to the
Registration Statement containing the public offering price has been filed with
the Commission], or at such later time and date as shall have been consented to
in writing by the Lead Managers; if the Company shall have elected to rely upon
Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been
filed with the Commission in a timely fashion in accordance with Section 4(a)
hereof and a form of the Prospectus containing information relating to the
description of the Shares and the method of distribution and similar matters
shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period; and, at or prior to the Closing Date no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission.
(b) At the Closing Date, the Representatives
shall have received the written opinion of Xxxxxxxx & Xxxxxxxx, counsel for the
Company, dated the Closing Date addressed to the Underwriters in the form
attached hereto as Annex I and the written opinion of counsel in Singapore for
the Company and its Subsidiary in form and substance reasonably satisfactory to
the Representatives.
(c) All proceedings taken in connection with the
sale of the Firm Shares and the Additional Shares as herein contemplated shall
be satisfactory in form and substance to the Lead Managers and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters' Counsel a
written opinion, dated as of the Closing Date, with respect to the issuance and
sale of the Shares, the Registration Statement and the Prospectus and such other
related matters as the Lead Managers may require, and the Company shall have
furnished to Underwriters' Counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
19
(d) At the Closing Date, the Representatives
shall have received a certificate of the Chief Executive Officer and Chief
Financial Officer of the Company, dated the Closing Date to the effect that (i)
the condition set forth in subsection (a) of this Section 6 has been satisfied,
(ii) as of the date hereof and as of the Closing Date, the representations and
warranties of the Company set forth in Section 1 hereof are accurate, (iii) as
of the Closing Date all agreements, conditions and obligations of the Company to
be performed or complied with hereunder on or prior thereto have been performed
or complied with, (iv) the Company and the Subsidiary have not sustained any
material loss or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding,
(v) no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission, (vi) there are no pro forma
or as adjusted financial statements that are required to be included in the
Registration Statement and the Prospectus pursuant to the Rules and Regulations
that have not been included as required and (vii) subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus there has not been any Material Adverse Change.
(e) At the time this Agreement is executed and
at the Closing Date, the Representatives shall have received comfort letters
from each of Ernst & Young LLP and PricewaterhouseCoopers and dated,
respectively, as of the date of this Agreement and as of the Closing Date
addressed to the Underwriters and in form and substance satisfactory to the
Underwriters and Underwriters' Counsel.
(f) Subsequent to the execution and delivery of
this Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
the capital stock or long-term debt of the Company or the Subsidiary or any
change or development involving a change, whether or not arising from
transactions in the ordinary course of business, in the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and the Subsidiary, taken as a whole,
including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company or the Subsidiary, the effect of which, in any such case
described above, is, in the judgment of the Lead Managers, so material and
adverse as to make it impracticable or inadvisable to proceed with the Offering
on the terms and in the manner contemplated in the Prospectus (exclusive of any
supplement).
(g) You shall have received a duly executed
lock-up agreement from each stockholder of the Company (including each
stockholder receiving shares of capital stock of the Company in the Dynavax Asia
Conversion), in each case substantially in the form attached hereto as Annex II.
(h) At the Closing Date, the Shares shall have
been approved for quotation on the NASDAQ.
20
(i) At the Closing Date, the NASD shall have
confirmed that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by
any federal, state or foreign governmental or regulatory authority that would,
as of the Closing Date, prevent the issuance or sale of the Shares; and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Shares.
(k) The Underwriters shall have received from
Underwriters' Counsel a blue sky memorandum, dated as of the Closing Date.
(l) The Company shall have furnished the
Underwriters and Underwriters' Counsel with such other certificates, opinions or
other documents as they may have reasonably requested, including certificates of
the Chief Executive Officer and Chief Financial officer of the Company with
respect to certain financial matters.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be satisfactory in form and substance to the Lead Managers and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be cancelled by the
Lead Managers at, or at any time prior to, the Closing Date and the obligations
of the Underwriters to purchase the Additional Shares may be cancelled by the
Lead Managers at, or at any time prior to, the Additional Closing Date. Notice
of such cancellation shall be given to the Company in writing, or by telephone.
Any such telephone notice shall be confirmed promptly thereafter in writing.
7. Indemnification.
(a) The Company shall indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in (A) the Registration Statement, as originally filed
or any amendment thereof, or any related Preliminary
21
Prospectus or the Prospectus, or in any supplement thereto or amendment thereof,
or (B) in any materials or information provided to investors by, or with the
approval of, the Company in connection with the marketing of the offering of the
Shares, including any road show or investor presentations made to investors by
the Company (whether in person electronically) ("Marketing Materials"), (ii) the
omission or alleged omission to state in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary Prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or in any
Marketing Materials, a material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) (A) the violation of any
applicable laws or regulations of any foreign jurisdictions where Directed
Shares have been offered or (B) any untrue statement or alleged untrue statement
of a material fact included in the supplement or prospectus wrapper material
distributed in connection with the reservation and sale of the Directed Shares
or the omission or alleged omission therefrom of a material fact necessary to
make the statements therein, when considered in conjunction with the Prospectus
or Preliminary Prospectus, not misleading; provided, however, that the Company
will not be liable in any such case to the extent but only to the extent that
any such loss, liability, claim, damage or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, as originally filed or any
amendment thereof, or any related Preliminary Prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Lead Manger expressly for use therein. The parties
agree that such information provided by or on behalf of any Underwriter through
the Lead Managers consists solely of the material referred to in the last
sentence of Section 1(b) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have, including but not limited to
other liability under this Agreement. The foregoing indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or supplemented,
provided by the Company to the several Underwriters in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing Date)
to the person asserting any losses, claims, damages and liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured, as determined by a court of competent jurisdiction in a decision not
subject to further appeal, in such Prospectus and such Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to such
person.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to reasonable attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon 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,
in each case to the extent, but only to the extent, that any
22
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Lead Managers specifically for use therein; provided, however, that in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. The parties agree that such information provided by or on
behalf of any Underwriter through the Lead Managers consists solely of the
material referred to in the last sentence of Section 1(b) hereof. This indemnity
will be in addition to any liability which any Underwriter may otherwise have,
including but not limited to other liability under this Agreement.
(c) In connection with the offer and sale of
Directed Shares the Company agrees promptly upon written notice, to indemnify
and hold harmless the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, liabilities, claims,
damages and expenses incurred by them as a result of the failure of any Directed
Share Purchaser, who makes an oral agreement, properly confirmed by the
Underwriters, to purchase Directed Shares within twenty-four hours of
establishing the public offer price, to pay for and accept delivery of the
Directed Shares. Under no circumstances will the Lead Managers or any
Underwriter be liable to the Company or to any Directed Share Purchaser for any
action taken or omitted to be taken in connection with the Directed Shares or
any transaction effected with any Directed Share Purchaser, except to the extent
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from the gross
negligence or willful misconduct of the Lead Managers or such Underwriter, as
the case may be.
(d) Promptly after receipt by an indemnified
party under subsection (a), (b) or (c) above of notice of any claims or the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
claim or the commencement thereof (but the failure so to notify an indemnifying
party shall not relieve the indemnifying party from any liability which it may
have under this Section 7 to the extent that it is not materially prejudiced as
a result thereof and in any event shall not relieve it from any liability that
such indemnifying party may have otherwise than on account of the indemnity
agreement hereunder). In case any such claim or action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate, at its own
expense in the defense of such action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided however, that counsel to the
indemnifying party shall not (except with the written consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently
23
defend the action after assumption of the defense, or (iv) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. No
indemnifying party shall, without the prior written consent of the indemnified
parties, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened claim, investigation, action
or proceeding in respect of which indemnity or contribution may be or could have
been sought by an indemnified party under this Section 7 or Section 8 hereof
(whether or not the indemnified party is an actual or potential party thereto),
unless (x) such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such claim,
investigation, action or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or any failure to act, by or on behalf of
the indemnified party, and (y) the indemnifying party confirms in writing its
indemnification obligations hereunder with respect to such settlement,
compromise or judgment.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, officers of the Company who signed the Registration Statement
and directors of the Company) as incurred to which the Company and one or more
of the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the Offering or, if such allocation is not permitted by applicable law, in such
proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as (x) the
total proceeds from the Offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company bears to (y) the
underwriting discount or commissions received by the Underwriters, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of each of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by
24
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 8, (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
discounts and commissions applicable to the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) 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. For purposes of this Section 8,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and 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, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of the immediately preceding sentence. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise. The obligations of the Underwriters to contribute pursuant to this
Section 8 are several in proportion to the respective number of Shares to be
purchased by each of the Underwriters hereunder and not joint.
9. Underwriter Default.
(a) If any Underwriter or Underwriters shall
default in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates (the "Default Shares") do not (after giving effect to
arrangements, if any, made by the Lead Managers pursuant to subsection (b)
below) exceed in the aggregate 10% of the number of Firm Shares or Additional
Shares, each non-defaulting Underwriter, acting severally and not jointly,
agrees to purchase from the Company that number of Default Shares that bears the
same proportion of the total number of Default Shares then being purchased as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters, subject, however, to such
adjustments to eliminate fractional shares as the Lead Managers in its sole
discretion shall make.
(b) In the event that the aggregate number of
Default Shares exceeds 10% of the number of Firm Shares or Additional Shares, as
the case may be, the Lead Managers may in their discretion arrange for
themselves or for another party or parties (including any non-
25
defaulting Underwriter or Underwriters who so agree) to purchase the Default
Shares on the terms contained herein. In the event that within five calendar
days after such a default the Lead Managers do not arrange for the purchase of
the Default Shares as provided in this Section 9, this Agreement or, in the case
of a default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company to sell the Additional Shares shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Sections 5, 7, 8, 10 and 11(d)) or
the Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(a) In the event that any Default Shares are to
be purchased by the non-defaulting Underwriters, or are to be purchased by
another party or parties as aforesaid, the Lead Managers or the Company shall
have the right to postpone the Closing Date or Additional Closing Date, as the
case may be for a period, not exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement or in certificates of officers of the
Company or the Subsidiary submitted pursuant hereto, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company, any of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8, 10 and 11 hereof shall survive any termination of
this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon
the later of (i) receipt by the Lead Managers and the Company of notification of
the effectiveness of the Registration Statement or (ii) the execution of this
Agreement. Notwithstanding any termination of this Agreement, the provisions of
this Section 11 and of Sections 1, 5, 7, 8 and 12 through 17, inclusive, shall
remain in full force and effect at all times after the execution hereof.
(b) The Lead Managers shall have the right to
terminate this Agreement at any time prior to the Closing Date or to terminate
the obligations of the Underwriters to purchase the Additional Shares at any
time prior to the Additional Closing Date, as the case may be, if (i) any
domestic or international event or act or occurrence has materially disrupted,
or in the opinion of the Lead Managers will in the immediate future materially
disrupt,
26
the market for the Company's securities or securities in general; or (ii)
trading on The New York Stock Exchange ("the NYSE") or the NASDAQ National
Market (the "NASDAQ") shall have been suspended or been made subject to material
limitations, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the NYSE
or the NASDAQ or by order of the Commission or any other governmental authority
having jurisdiction; or (iii) a banking moratorium has been declared by any
state or federal authority or if any material disruption in commercial banking
or securities settlement or clearance services shall have occurred; or (iv) (A)
there shall have occurred any outbreak or escalation of hostilities or acts of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there shall have been any other
calamity or crisis or any change in political, financial or economic conditions
if the effect of any such event in (A) or (B), in the judgment of the Lead
Managers, makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms and in the manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this
Section 11 shall be in writing.
(d) If this Agreement shall be terminated
pursuant to any of the provisions hereof (other than pursuant to (i)
notification by the Lead Managers as provided in Section 11(a) hereof or (ii)
Section 9(b) hereof), or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth herein is not satisfied or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof, the Company will, subject to demand by the Lead Managers,
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and expenses of their counsel), incurred by the Underwriters in connection
herewith.
12. Notices. All communications hereunder, except as may
be otherwise specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed,
delivered, or faxed and confirmed in writing, to such Underwriter c/o Bear,
Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[Xxxxxxx Parish, Senior Managing Director, Equity Capital Markets], with a copy
to Underwriter's Counsel at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx,
Attention: Xxxxxxx Xxxxxx, Esq.;
(b) if sent to the Company, shall be mailed,
delivered, or faxed and confirmed in writing to the Company and its counsel at
the addresses, and to the attention of the respective persons, set forth in the
Registration Statement;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to Bear Xxxxxxx, which address
will be supplied to any other party hereto by Bear Xxxxxxx upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
27
13. Parties. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Underwriters and the Company and the
controlling persons, directors, officers, employees and agents referred to in
Sections 7 and 8 hereof, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and said controlling persons and their respective successors, officers,
directors, heirs and legal representatives, and it is not for the benefit of any
other person, firm or corporation. The term "successors and assigns" shall not
include a purchaser, in its capacity as such, of Shares from any of the
Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. The Company irrevocably (a) submits to the jurisdiction
of any court of the State of New York or the United State District Court for the
Southern District of the State of New York for the purpose of any suit, action,
or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus (each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to the
fullest extent permitted by law, any immunity from jurisdiction of any such
court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
Delivery of a signed counterpart of this Agreement by facsimile transmission
shall constitute valid and sufficient delivery thereof.
16. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence
of this Agreement. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
[signature page follows]
28
If the foregoing correctly sets forth your understanding,
please so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement among us.
Very truly yours,
DYNAVAX TECHNOLOGIES CORPORATION
By:_______________________________________
Name:
Title:
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
XXXXX XXXXXXX & CO.
By: BEAR, XXXXXXX & CO. INC.
By:_______________________________________
Name:
Title:
By: DEUTSCHE BANK SECURITIES INC.
By:_______________________________________
Name:
Title:
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Additional
Total Number of Firm Shares to be Purchased if
Underwriter Shares to be Purchased Option is Fully Exercised
----------- ---------------------- -------------------------
Bear, Xxxxxxx & Co. Inc.
Deutsche Bank Securities Inc.
Xxxxx Xxxxxxx & Co.
[NAMES OF OTHER UNDERWRITERS]
Total.............
====================== =========================
ANNEX I
Form of Opinion of Company Counsel
1. Each of the Company and its Subsidiary has been duly
organized and validly exists as a corporation in good standing under the laws of
its jurisdiction of incorporation, with full power and authority to own its
properties and conduct its business as described in the Registration Statement
and the Prospectus. Each of the Company and its Subsidiary is duly qualified and
in good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in the
aggregate have a Material Adverse Effect.
2. The Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus. All of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are not in violation of or subject
to any preemptive or, to such counsel's knowledge, similar rights that entitle
or will entitle any person to acquire any Shares from the Company upon issuance
or sale thereof. The Shares to be delivered on the Closing Date and the
Additional Closing Date, if any, have been duly and validly authorized and, when
delivered in accordance with the Underwriting Agreement, will be duly and
validly issued, fully paid and non-assessable and will not have been issued in
violation of or subject to preemptive or, to the such counsel's knowledge,
similar rights that entitle or will entitle any person to acquire any Shares
from the Company upon issuance or sale thereof. All of the issued shares of
capital stock of each of the Subsidiary and the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all Liens. The
Common Stock, the Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Registration Statement and the Prospectus.
3. The Shares have been designated for inclusion on the
NASDAQ.
4. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company.
5. To the such counsel's knowledge and other than as set
forth in the Prospectus, there are no judicial, regulatory or other legal or
governmental proceedings pending to which the Company or its Subsidiary is a
party or of which any property of the Company or its Subsidiary is the subject
which, if determined adversely to the Company or any of its Subsidiary, would
individually or in the aggregate have a Material Adverse Effect; and, to the
such counsel's knowledge, no such proceedings are threatened or contemplated.
6. The execution, delivery, and performance of the
Underwriting Agreement and consummation of the transactions contemplated by
Underwriting Agreement, do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its Subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or any other
agreement, instrument, franchise, license or permit known to
such counsel to which the Company or its Subsidiary is a party or by which any
of the Company its Subsidiary or their respective properties or assets may be
bound or (B) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or its Subsidiary, or, to the knowledge
of such counsel, any judgment, decree, order, statute, rule or regulation of any
court or any judicial, regulatory or other legal or governmental agency or body.
7. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any judicial, regulatory or other legal or governmental agency or body is
required for the execution, delivery and performance of this Agreement or
consummation of the transactions contemplated by the Underwriting Agreement,
except for (1) such as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion), (2) such as
have been made or obtained under the Securities Act and (3) such as are required
by the NASD.
8. The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial statements
and schedules and other financial data included or incorporated by reference
therein, as to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Securities Act, the Exchange Act
and the Rules and Regulations.
9. The statements under the captions "Shares Eligible
for Future Sale," "Description of Capital Stock" and "Underwriting" in the
Prospectus and Items 14 and 15 of Part II of the Registration Statement, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings.
10. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Registration Statement and the Prospectus, will not be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
11. The Registration Statement is effective under the
Securities Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) and Rule
430A under the Securities Act have been made.
12. The Company has full right, power and authority to
execute and deliver the Underwriting Agreement and the Shares and to perform its
obligations thereunder, and all corporate action required to be taken for the
due and proper authorization, execution and delivery of the Underwriting
Agreement and the Shares and consummation of the transactions contemplated by
the Underwriting Agreement have been taken.
13. To the knowledge of such counsel, no contract or
agreement is required to be filed as an exhibit to the Registration Statement
that is not so filed.
14. To the knowledge of such counsel, except as described
in [Section ___, paragraph ___ ] of the Prospectus], there are no legal or
governmental proceedings pending relating to patent rights, trade secrets,
trademarks, service marks or other proprietary information or materials of the
Company, and to the such counsel's knowledge no such proceedings are threatened
by governmental authorities or others.
15. Based solely upon a review of matters which such
counsel has been engaged to provide direct substantive attention, such counsel
has no reason to believe that, other than as described in [Section ___,
paragraph ___ ]of the Prospectus, the Company is infringing or otherwise
violating any patents, trade secrets, trademarks, service marks or other
proprietary rights of others, and such counsel has no reason to believe that,
there are infringements by others of any of the Company's patents, trade
secrets, trademarks, service marks or other proprietary information or
materials.
16. Based solely upon a review of matters which such
counsel has been engaged to provide direct substantive attention, such counsel
has no reason to believe that the Company does not own or possess adequate
licenses or other rights to use all material patents, patent applications and
trademarks described in the Prospectus and necessary to conduct the business now
being conducted by the Company as described in the Prospectus except as
described in [Section ___, paragraph ___ ]of the Prospectus.
In addition, we have participated in conferences with your
representatives and with representatives of the Company and its accountants
concerning the Registration Statement and the Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although we have not independently verified the accuracy, completeness or
fairness of such statements. Based upon and subject to the foregoing, nothing
has come to our attention that leads us to believe that the Registration
Statement, at the time it 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 not misleading, or that the
Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b)
under the Act or as of the date hereof, 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 (it being understood
that we have not been requested to and do not make any comment in this paragraph
with respect to the financial statements and related supporting schedules,
footnotes, and other financial data incorporated by reference therein).
ANNEX II
Form of Lock-up Agreement
October __, 2003
Bear, Xxxxxxx & Co. Inc.
Deutsche Bank Securities
U.S. Bancorp Xxxxx Xxxxxxx
As Representatives of the several
Underwriters referred to below
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Dynavax Technologies Corporation Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed public
offering (the "Offering") by Dynavax Technologies Corporation, a Delaware
corporation (the "Company"), of its common stock, $.001 par value (the "Stock").
In order to induce you and the other underwriters for which you act as
representatives (the "Underwriters") to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of Bear, Xxxxxxx & Co.
Inc. ("Bear Xxxxxxx"), during the period from the date hereof until one hundred
eighty (180) days from the date of the final prospectus for the Offering (the
"Lock-Up Period"), the undersigned (a) will not, directly or indirectly, offer,
sell, agree to offer or sell, solicit offers to purchase, grant any call option
or purchase any put option with respect to, pledge, borrow or otherwise dispose
of any Relevant Security (as defined below), and (b) will not establish or
increase any "put equivalent position" or liquidate or decrease any "call
equivalent position" with respect to any Relevant Security (in each case within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder), or otherwise enter into
any swap, derivative or other transaction or arrangement that transfers to
another, in whole or in part, any economic consequence of ownership of a
Relevant Security, whether or not such transaction is to be settled by delivery
of Relevant Securities, other securities, cash or other consideration. As used
herein "Relevant Security" means the Stock, any other equity security of the
Company or any of its subsidiaries and any security convertible into, or
exercisable or exchangeable for, any Stock or other such equity security.
Notwithstanding the foregoing, (i) the undersigned may transfer
Relevant Securities by (a) bona fide gift or (b) will or intestate succession to
his or her immediate family or to a trust the sole beneficiaries of which are
one or more of the undersigned and his or her immediate family (the term
"immediate family" meaning for these purposes the spouse, domestic partner,
lineal descendant, father, mother or sibling of the undersigned) and (ii) if the
undersigned is a partnership or limited liability company, the undersigned may
make a pro rata distribution of
Relevant Securities to its partners or members, provided as to both (i) and (ii)
above, each resulting transferee of Relevant Securities executes and delivers to
you an agreement satisfactory to you certifying that such transferee is bound by
the terms of this Agreement and has been in compliance with the terms hereof
since the date first above written as if it had been an original party hereto.
In addition, this Agreement shall not restrict the sale or other
disposition of Relevant Securities that are acquired by the undersigned in the
open market after the Offering is priced or pursuant to an issuer directed share
program, provided that any such sale or other disposition fully complies with,
and is not required to be disclosed or reported under, applicable law (including
but not limited to Section 16 under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder).
The undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities.
The undersigned hereby further agrees that, without the prior written
consent of Bear Xxxxxxx, during the Lock-up Period the undersigned (x) will not
file or participate in the filing with the Securities and Exchange Commission of
any registration statement, or circulate or participate in the circulation of
any preliminary or final prospectus or other disclosure document with respect to
any proposed offering or sale of a Relevant Security and (y) will not exercise
any rights the undersigned may have to require registration with the Securities
and Exchange Commission of any proposed offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first above written.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
This Agreement shall terminate and be of no further force and effect in
the event the Company has not consummated the Offering on or prior to March 31,
2004.
Very truly yours,
By: ______________________________
Print Name: ______________________
