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EXHIBIT 1
GENENTECH, INC.
20,000,000 Shares of Common Stock
Underwriting Agreement
July [ ], 1999
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Warburg Dillon Read LLC
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Roche Holdings, Inc., a Delaware corporation (the "Selling Stockholder")
and the sole stockholder of Genentech, Inc., a Delaware corporation (the
"Company"), proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 20,000,000 shares (the "Underwritten
Shares") of Common Stock, par value $0.02 per share, of the Company (the "Common
Stock"). In addition, for the sole purpose of covering over-allotments in
connection with the sale of the Underwritten Shares, the Selling Stockholder
proposes to issue and sell to the Underwriters, at the option of the
Underwriters, up to an additional 2,000,000 shares (the "Option Shares") of
Common Stock. The Underwritten Shares and the Option Shares are herein referred
to as the "Shares."
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it became or shall become effective,
in-
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cluding information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement," and the
prospectus in the form first used to confirm sales of Shares is referred to in
this Agreement as the "Prospectus." If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the effective date of the Registration Statement
or the date of such preliminary prospectus or the Prospectus, as the case may
be, and any reference to "amend," "amendment" or "supplement" with respect to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference therein.
1. The Selling Stockholder agrees to sell the Underwritten Shares
to the several Underwriters as hereinafter provided, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Selling Stockholder at a purchase price per share of $[ ] (the
"Purchase Price") the number of Underwritten Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto.
In addition, the Selling Stockholder agrees to issue and sell the Option
Shares to the several Underwriters as hereinafter provided, and the
Underwriters, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, shall have the
option to purchase, severally and not jointly, from the Selling Stockholder at
the Purchase Price that portion of the number of Option Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Option Shares by a
fraction, the numerator of which is the maximum number of Underwritten Shares
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Underwritten Shares which all of the Underwriters are entitled
to purchase hereunder, for the sole purpose of covering over-allotments (if any)
in the sale of Underwritten Shares by the several Underwriters.
The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than once) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Selling Stockholder. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and
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the date and time when the Option Shares are to be delivered and paid for, which
may be the same date and time as the Closing Date (as hereinafter defined) but
shall not be earlier than the Closing Date nor later than the tenth full
Business Day (as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of Section 9
hereof). Any such notice shall be given at least two Business Days prior to the
date and time of delivery specified therein.
2. The Company and the Selling Stockholder understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Selling Stockholder
to the Representatives, in the case of the Underwritten Shares, on July [ ],
1999, or at such other time on the same or such other date, not later than the
fifth Business Day thereafter, as the Representatives and the Selling
Stockholder may agree upon in writing, or, in the case of the Option Shares, on
the date and time specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Shares. The time and date of such
payment for the Underwritten Shares is referred to herein as the "Closing Date,"
and the time and date for such payment for the Option Shares, if other than the
Closing Date, are herein referred to as the "Additional Closing Date." As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Selling Stockholder. The
certificates for the Shares will be made available for inspection and packaging
by the Representatives at the office of X.X. Xxxxxx Securities Inc. set forth
above not later than 1:00 P.M., New York City time, on the Business Day prior to
the Closing Date or the Additional Closing Date, as the case may be.
4. (A) The Company represents and warrants to each Underwriter and
the Selling Stockholder that:
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(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that the foregoing representations and warranties shall not
apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; the Registration Statement and Prospectus
(as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented, if applicable, at the
Closing Date or Additional Closing Date, as the case may be, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
the foregoing representations and warranties shall not apply to any
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(c) the documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, and will not contain an untrue
statement of a material
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fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(d) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations and changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly
the information required to be stated therein; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable,
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Change"), otherwise than as set forth or contemplated in the Prospectus;
and except as set forth or contemplated in the Prospectus, neither the
Company nor any of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to the Company and its subsidiaries, taken as a whole;
(f) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material
adverse effect on the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect");
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(g) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a Material
Adverse Effect; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except, in the case of foreign
subsidiaries, for directors' qualifying shares and except as described
in the Prospectus) are owned by the Company, directly or indirectly,
free and clear of all liens, encumbrances, security interests and
claims;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Company has an authorized capitalization as set
forth in the Prospectus and such authorized capital stock conforms as to
legal matters to the description thereof set forth in the Prospectus,
and all of the outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and validly issued, are
fully paid and non-assessable and are not subject to any pre-emptive or
similar rights; and, except as described in or expressly contemplated by
the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of
the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options;
(j) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under its certificate of incorporation or
by-laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
would not, individually or in the aggregate, have a Material Adverse
Effect; the performance by the Company of its obligations under this
Agreement and the consummation of the transactions contemplated herein
and in the Prospectus will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its sub-
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sidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Company or any of its subsidiaries
or any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement and the Prospectus, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as may
be required under state securities or blue sky laws in connection with
the purchase and distribution of the Shares by the Underwriters;
(k) other than as set forth in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of
its subsidiaries is or may be the subject which, if determined adversely
to the Company or any of its subsidiaries, could, individually or in the
aggregate, have, or reasonably be expected to have, a Material Adverse
Effect, and, to the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(l) the Company and its subsidiaries have good title in fee
simple to all items of real property and good title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially interfere with the use made
or proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made of
such property and buildings by the Company or its subsidiaries;
(m) no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company
or any of its subsidiaries, on the other hand,
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which is required by the Securities Act to be described in the
Registration Statement and the Prospectus which is not so described;
(n) no person has the right to require the Company to
register any securities for offering and sale under the Securities Act
by reason of the filing of the Registration Statement with the
Commission or, to the best knowledge of the Company, the sale of the
Shares by the Selling Stockholder pursuant hereto, except for rights
which have been waived;
(o) the Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Ernst & Young LLP ("Ernst & Young"), who have certified
certain financial statements of the Company, are independent public
accountants as required by the Securities Act;
(q) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments received
by them or any of them to the extent that such taxes have become due and
are not being contested in good faith; and, except as disclosed in the
Registration Statement and the Prospectus, no tax deficiency has been
determined adversely to the Company or any subsidiary which has had, nor
does the Company have any knowledge of any tax deficiency, which if
determined adversely to the Company or any subsidiary might have a
Material Adverse Effect;
(r) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock;
(s) the statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which are believed by the Company to be reliable;
(t) each of the Company and its subsidiaries owns, is
licensed to use or otherwise possesses adequate rights to use the
patents, patent rights, licenses, inventions, trademarks, service marks,
trade names, copyrights and know-how, including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems, processes or procedures (collectively, the "Intellectual
Property"), reasonably necessary to carry on the business conducted by
it, except to the extent that the failure to own, be licensed to use or
otherwise possess adequate rights to use such Intellectual Property
would not, individually or in the aggregate, be reasonably expected to
have a
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Material Adverse Effect; except as set forth in the Prospectus, the
Company has not received any notice of infringement of or conflict with,
and the Company has no knowledge of any infringement of or conflict
with, asserted rights of others with respect to its Intellectual
Property which could reasonably be expected to result in a Material
Adverse Effect; except as set forth in the Prospectus, the discoveries,
inventions, products or processes of the Company referred to in the
Registration Statement and the Prospectus do not, to the knowledge of
the Company, infringe or conflict with any right or patent of any third
party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party which patent
application has been published or is otherwise known to the Company
which could reasonably be expected to result in a Material Adverse
Effect; except as set forth in the Prospectus, the Company is not
obligated to pay a royalty, grant a license or provide other
consideration to any third party in connection with its patents, patent
rights, licenses, inventions, trademarks, service marks, trade names,
copyrights and know-how which could reasonably be expected to result in
a Material Adverse Effect; and no third party, including any academic or
governmental organization, possesses rights to the Intellectual Property
which, if exercised, could reasonably be expected to have a Material
Adverse Effect;
(u) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, the studies,
tests and preclinical and clinical trials conducted by or on behalf of
the Company that are described in the Registration Statement and the
Prospectus were and, if still pending, are being conducted in accordance
with experimental protocols, procedures and controls pursuant to, where
applicable, accepted professional scientific standards, except where the
failure could not reasonably be expected to result in a Material Adverse
Effect; the descriptions of the results of such studies, tests and
trials contained in the Registration Statement and the Prospectus are
accurate and complete in all material respects; and the Company has not
received any notices or correspondence from the U.S. Food and Drug
Administration (the "FDA") or any foreign, state or local governmental
body exercising comparable authority requiring the termination,
suspension or material modification of any studies, tests or preclinical
or clinical trials conducted by or on behalf of the Company which
termination, suspension or material modification could reasonably be
expected to have a Material Adverse Effect;
(v) the Company has reviewed its operations and those of its
subsidiaries and has made inquiries of third parties with which the
Company or any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the Company
or any of its subsidiaries will be affected by the Year 2000 Problem; as
a result of such review and inquiries, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will have a
Material Adverse Effect. The
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"Year 2000 Problem" as used herein means any significant risk that
computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as
in the case of dates or time periods occurring prior to January 1, 2000;
(w) there are no existing or, to the knowledge of the
Company, threatened labor disputes with the employees of the Company
which are likely to have a Material Adverse Effect;
(x) the Company carries, or is covered by, insurance in such
amounts and covering such risks as is 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;
(y) the Company (i) is in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its businesses and (iii) is in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and
(z) each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), that is maintained, administered or contributed to by
the Company or any of its affiliates for employees or former employees
of the Company and its affiliates has been maintained in material
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended ("Code"); no
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption; for each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency," as defined in Section 412 of the Code,
has been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these
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purposes accrued but unpaid contributions) exceed the present value of
all benefits accrued under such plan determined using reasonable
actuarial assumptions.
(B) The Selling Stockholder hereby represents and warrants
to each of the Underwriters that:
(a) the Selling Stockholder has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the State of Delaware;
(b) the Selling Stockholder has good and valid title to the
Shares to be sold by the Selling Stockholder hereunder, free and clear
of all mortgages, pledges, security interests, liens, claims,
encumbrances or equities, with full right and authority to deliver the
same hereunder; upon payment for the Shares to be sold by the Selling
Stockholder as provided herein, delivery of such Shares, as directed by
the Underwriter, to Cede & Co. ("Cede") or such other nominee as may be
designated by the Depository Trust Company ("DTC"), registration of such
Shares in the name of Cede or such other nominee and the crediting of
such Shares on the books of DTC to securities accounts of the
Underwriters, (A) DTC shall be a "protected purchaser" of such Shares
within the meaning of 8-303 of the Uniform Commercial Code as in effect
in the State of New York (the "UCC"), (B) under Section 8-501 of the
UCC, the Underwriters will acquire a valid security entitlement in
respect of such Shares and (C) no action based on any "adverse claim"
(as defined in Section 8-102 of the UCC) (other than any adverse claim
arising through the Underwriters) to such Shares may be asserted against
the Underwriters with respect to such security entitlement (it being
understood that for the purpose of this representation and warranty, the
Selling Stockholder may assume that when such payment, delivery and
crediting occur, (i) such Shares will have been registered in the name
of Cede or another nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (ii) DTC will be registered as
a "clearing corporation" within the meaning of Section 8-102 of the UCC,
and (iii) appropriate entries to the accounts of the several
Underwriters on the records of DTC will have been made pursuant to the
UCC);
(c) the Selling Stockholder has not taken nor will it take,
directly or indirectly, any action which is designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock;
(d) the sale of the Shares by the Selling Stockholder
pursuant to this Agreement is not prompted by any material information
concerning the Company which is not set forth in the Registration
Statement or the Prospectus;
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(e) each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, did not
contain an untrue statement of a material fact or omit to state a
material fact, in each case with respect to information relating to the
Selling Stockholder furnished to the Company in writing by or on behalf
of the Selling Stockholder expressly for use therein, required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(f) the Registration Statement and the Prospectus (as
amended or supplemented) do not and will not, as of the applicable
effective date of the Registration Statement and any amendment thereto
and as of the date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to
state any material fact, in each case with respect to information
relating to the Selling Stockholder furnished to the Company by or on
behalf of the Selling Stockholder expressly for use therein, required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented, if
applicable, at the Closing Date or Additional Closing Date, as the case
may be, will not contain any untrue statement of a material fact or omit
to state a material fact, in each case relating to the Selling
Stockholder, necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(g) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; and
(h) the sale of the Shares by the Selling Stockholder
hereunder, the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the property or assets of the Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the certificate
of incorporation or by-laws of the Selling Stockholder, nor will such
action result in any violation of any applicable statute or any
applicable order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Selling Stockholder or any of its
properties; no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the sale of the Shares or the consummation by the
Selling Stockholder of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained or
13
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made under the Securities Act or the Exchange Act and as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Shares by the Underwriters; the Selling
Stockholder has full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares to be
sold by it; and each agreement between the Company and the Selling
Stockholder referred to in the Prospectus has been duly executed and
delivered by the Selling Stockholder and constitutes a valid and binding
obligation of the Selling Stockholder enforceable against the Selling
Stockholder in accordance with its terms.
5. (A) The Company covenants and agrees with each of the
several Underwriters as follows:
(a) if the Registration Statement is not already effective,
to use its best efforts to cause the Registration Statement to become
effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; and
to furnish copies of the Prospectus to the Underwriters in New York City
prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the
Representatives five signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference therein
as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Representatives reasonably object;
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(d) to advise the Representatives promptly, and to confirm
such advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has
been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for
that purpose, (vi) of the occurrence of any event, during the period
mentioned in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, and (vii) of the
receipt by the Company of any notification with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending any
such qualification of the Shares, or notification of any such order
thereof, and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of
the public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company if delivery of the prospectus is required at
any time prior to the expiration of 9 months after the Closing Date (and
at the expense of such Underwriters if delivery of the Prospectus is
required 9 months or more after the Closing Date), to the Underwriters
and to the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
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(f) to endeavor to qualify the Shares for offer and sale
under the securities or blue sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Shares; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and
to the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) during the period of three years after the date of this
Agreement, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to holders of the
Shares, and copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange;
(i) for a period of 90 days after the date of the initial
public offering of the Shares not to, (i) directly or indirectly, offer,
pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of any shares of Common Stock or any securities of the Company
which are substantially similar to the Common Stock, including but not
limited to any securities convertible into or exercisable or
exchangeable for, or that represent the right to receive, Common Stock
or any such substantially similar securities or (ii) enter into any
swap, option, future, forward or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the
Common Stock or any such substantially similar securities, whether any
such transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or
otherwise without the prior written consent of X.X. Xxxxxx Securities
Inc., other than (i) any options granted or shares of Common Stock of
the Company issued upon the exercise of options granted or to be granted
under the Company's employee stock option plans existing on the date of
the Prospectus and (ii) in connection with the agreement described under
"Relationship with Roche -- Roche's Right to Maintain its Percentage
Ownership Interest in Our Stock" in the Prospectus;
(j) to list the Shares on the New York Stock Exchange (the
"Exchange"); and
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and ex-
16
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penses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, registration, transfer,
execution and delivery of the Shares, (ii) except as provided in
paragraph (c) of Section 5(B), incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus, including in each case all
exhibits, amendments and supplements thereto prior to or during the
period specified in paragraph (e) of this Section 5(A), (iii) in
connection with the listing of the Shares on the Exchange, (iv) related
to the filing with, and clearance of the offering by, the National
Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery
of this Agreement, any blue sky memoranda and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vi) any
expenses incurred by the Company in connection with a "road show"
presentation to potential investors, (vii) the cost of preparing stock
certificates, (viii) the cost and charges of the Company's transfer
agent and registrar and (ix) costs and expenses (other than the filing
fees contemplated by paragraph (c)(ii) of Section 5(B)) incurred in
connection with the registration or qualification of the Shares under
the laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Underwriters and its disbursements).
(B) The Selling Stockholder covenants and agrees with the
several Underwriters as follows:
(a) for a period of 90 days after the date of the initial
public offering of the Shares not to, (i) directly or indirectly, offer,
pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of any shares of Common Stock or any securities of the Company
which are substantially similar to the Common Stock, including but not
limited to any securities convertible into or exercisable or
exchangeable for, or that represent the right to receive, Common Stock
or any such substantially similar securities or (ii) enter into any
swap, future, forward or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock
or any such substantially similar securities, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise
or (iii) make any demand for or exercise any right with respect to the
registration of any shares of Common Stock or any such substantially
similar securities without the prior written consent of X.X. Xxxxxx
Securities Inc., in each case other than the Shares to be sold by such
Selling Stockholder hereunder;
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(b) to deliver to the Representatives prior to or at the
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters' documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated; and
(c) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all (i) filing fees incident to the filing under the
Securities Act of the Registration Statement, including in each case all
amendments and supplements thereto, (ii) filing fees paid in connection
with the registration or qualification of the Shares under the laws of
such jurisdictions as the Representatives may designate and (iii) costs
and expenses incurred directly by the Selling Stockholder including,
without limitation, the fees and expenses of its counsel.
6. The several obligations of the Underwriters hereunder to
purchase the Shares on the Closing Date or the Additional Closing Date, as the
case may be, are subject to the performance by the Company and the Selling
Stockholder of their respective obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective
(or if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(A)(a) hereof; and all
requests for additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of the Company and
the Selling Stockholder contained herein are true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be,
as if made on the Closing Date or the Additional Closing Date, as the
case may be, and each of the Company and the Selling Stockholder shall
have complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or the
Additional Closing Date, as the case may be;
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(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date or the Additional Closing Date,
as the case may be, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus, there shall not have been any change in the
capital stock or long-term debt of the Company or its subsidiaries or
any Material Adverse Change otherwise than as set forth or contemplated
in the Prospectus, the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the Closing Date or
the Additional Closing Date, as the case may be, on the terms and in the
manner contemplated in the Prospectus; and neither the Company nor any
of its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, (1) a
certificate of the Chief Executive Officer and Chief Financial Officer
of the Company, satisfactory to the Representatives, to the effect set
forth in subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
of this Section 6 and to the further effect that there has not occurred
any Material Adverse Change from that set forth or contemplated in the
Registration Statement and (2) a certificate from the Selling
Stockholder, satisfactory to the Representatives, to the effect set
forth in subsection (b) of this Section 6 (with respect to the
respective representations, warranties, agreements and conditions of the
Selling Stockholder);
(f) Xxxxx Xxxx & Xxxxxxxx, counsel for the Company and the
Selling Stockholder, shall have furnished to the Representatives their
written opinion, dated the Closing Date or the Additional Closing Date,
as the case may be, in form and substance satisfactory to the
Representatives, to the effect that:
(i) each of the Company and the Selling Stockholder
has been duly incorporated and is validly existing as a
corporation in good standing under the
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laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company and the Selling
Stockholder;
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iv) the statements in the Prospectus under
"Description of Capital Stock," "Material U.S. Federal Tax
Considerations for Non-U.S. Holders of Common Stock" and
"Underwriting" and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the terms of
the Common Stock, legal matters or documents referred to
therein, fairly present the information called for with respect
to such terms, legal matters or documents;
(v) such counsel shall state that no facts have come
to their attention to cause them to believe that (A) the
Registration Statement and the Prospectus and any supplement or
amendment thereto (other than any financial statements and
related schedules and other financial or statistical information
therein as to which no opinion is expressed) do not comply as to
form in all material respects with the Securities Act, (B) the
Registration Statement (other than any financial statements and
related schedules and other financial or statistical information
therein as to which no opinion is expressed) at its effective
date and, as supplemented by the Prospectus, at the Closing Date
or the Additional Closing Date, as the case may be, contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements contained therein not misleading and (C) the
Prospectus, as of the Closing Date or the Additional Closing
Date, as the case may be (other than any financial statements
and related schedules and other financial or statistical
information therein as to which no opinion is expressed),
contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements
contained therein, in the light of the circumstances under which
they were made, not misleading;
(vi) no consent, approval, authorization, order,
license, registration or qualification of or with any court or
government agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement
and the Prospectus, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act
and as may be required under state securities or blue sky
20
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laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(vii) the Company is not an "investment company" " as
such term is defined in the Investment Company Act;
(viii) upon payment for the Shares to be sold by the
Selling Stockholder as provided herein, delivery of such Shares,
as directed by the Underwriters, to Cede or such other nominee
as may be designated by DTC, registration of such Shares in the
name of Cede or such other nominee and the crediting of such
Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (as such phrase is defined in
Section 8-105 of the UCC) to such Shares)), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of 8-303
of the UCC, (B) under Section 8-501 of the UCC, the Underwriters
will acquire a valid security entitlement in respect of such
Shares and (C) no action based on any "adverse claim" (as
defined in Section 8-102 of the UCC) to such Shares may be
asserted against the Underwriters with respect to such security
entitlement (it being understood that for the purpose of this
opinion, such counsel may assume that when such payment,
delivery and crediting occur, (x) such Shares will have been
registered in the name of Cede or another nominee designated by
DTC, in each case on the Company's share registry in accordance
with its certificate of incorporation, bylaws and applicable
law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Underwriters
on the records of DTC will have been made pursuant to the UCC);
(ix) the sale of the Shares by the Selling
Stockholder hereunder, the compliance by the Selling Stockholder
with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Selling Stockholder
is a party or by which the Selling Stockholder is bound or to
which any of the property or assets of the Selling Stockholder
is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the
Selling Stockholder, nor will such action result in any
violation of any applicable statute or any applicable order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholder or any of its
properties; and
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(x) no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the sale of the
Shares or the consummation by the Selling Stockholder of the
transactions contemplated by this Agreement, except such
consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained or made
under the Securities Act or the Exchange Act and as may be
required under state securities or blue sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of New York and the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and the Selling
Stockholder, as applicable, and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the Selling
Stockholder, as applicable. The opinion of such counsel for the Company
and the Selling Stockholder shall state that the opinion of any such
other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon. With respect to the matters to be covered
in subparagraph (vii) above, counsel may state their opinion and belief
is based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto
(other than the documents incorporated by reference therein) and review
and discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent check or
verification except as specified.
The opinion of Xxxxx Xxxx & Xxxxxxxx described above shall be
rendered to the Underwriters at the request of the Company and the
Selling Stockholder and shall so state therein;
(g) Xxxxxxx X. Xxxxxxxxxx, Esq., General Counsel of the
Company, shall have furnished to the Representatives his written
opinion, dated the Closing Date or the Additional Closing Date, as the
case may be, in form and substance satisfactory to the Representatives,
to the effect that:
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(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified or in good standing would not have a Material
Adverse Effect;
(ii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would
not have a Material Adverse Effect; and all of the outstanding
shares of capital stock of each subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except, in the case of foreign subsidiaries, for directors'
qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) the outstanding shares of capital stock of the
Company (including the Shares) have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the Company
or any of its subsidiaries or any of their respective properties
or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or its
subsidiaries is or may be the subject which, if determined
adversely to the Company or any of its subsidiaries, could,
individually or in the aggregate, have, or reasonably be
expected to have, a Material Adverse Effect, and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others; and such counsel does not know of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required;
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(v) such counsel (A) is of the opinion that the
Registration Statement and the Prospectus and any supplement or
amendment thereto (other than any financial statements and
related schedules and other financial or statistical information
therein as to which no opinion is expressed) comply as to form
in all material respects with the Securities Act, (B) shall
state that no facts have come to his attention to cause him to
believe that the Registration Statement (other than any
financial statements and related schedules and other financial
or statistical information therein as to which no opinion is
expressed) at its effective date and, as supplemented by the
Prospectus, at the Closing Date or the Additional Closing Date,
as the case may be, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements contained therein
not misleading, and (C) shall state that no facts have come to
his attention to cause him to believe that the Prospectus, as of
the Closing Date or the Additional Closing Date, as the case may
be (other than any financial statements and related schedules
and other financial or statistical information therein as to
which no opinion is expressed), contains any untrue statement of
a material fact or omits to state any material fact necessary to
make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(vi) neither the Company nor any of its subsidiaries
is, or with the giving of notice or lapse of time or both would
be, in violation of or in default under, its certificate of
incorporation or by-laws or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is
a party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
would not, individually or in the aggregate, have a Material
Adverse Effect;
(vii) the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Company or any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties;
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(viii) (A) the documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Closing Date or the Additional
Closing Date, as the case may be (other than any financial
statements and related schedules and other financial or
statistical information therein as to which no opinion is
expressed), when they were filed with the Commission complied as
to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and (B)
such counsel shall state that no facts have come to his
attention to cause him to believe that any of such documents,
when such documents were so filed (other than any financial
statements and related schedules and other financial or
statistical information therein as to which no opinion is
expressed), contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(ix) each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and
has made all declarations and filings with, all federal, state,
local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to
own or lease, as the case may be, and to operate its properties
and to carry on its business as conducted as of the date hereof,
and neither the Company nor any such subsidiary has received any
actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in
the Registration Statement and the Prospectus; and each of the
Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted
as of the date of the Prospectus where the failure to so comply
would have a Material Adverse Effect;
(x) the Company and its subsidiaries have good title
in fee simple to all real property and good title to all
personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described
or referred to in the Prospectus or such as do not interfere
with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries
are held by them under valid, existing and enforceable leases
with such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries;
25
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(xi) each of the Company and its subsidiaries is in
compliance with all Environmental Laws, except, in each case,
where noncompliance, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; there
are no legal or governmental proceedings pending or, to the
knowledge of such counsel, threatened against or affecting the
Company or any of its subsidiaries under any Environmental Law
which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;
(xii) each of the Company and its subsidiaries owns,
possesses or has adequate rights to use the Intellectual
Property employed by it in connection with the business
conducted by it as of the date hereof except to the extent that
the failure to own, possess or have adequate rights to use such
Intellectual Property would not, individually or in the
aggregate, have a Material Adverse Effect;
(xiii) such counsel is of the opinion that the
statements in the Registration Statement and the Prospectus
included therein at the time the Registration Statement became
effective set forth under (A) "Risk Factors -- Protecting our
Proprietary Rights is Difficult and Costly " and "Business --
Proprietary Technology -- Patents and Trade Secrets," insofar as
such statements concern patents, patent applications and patent
rights, and (B) "Risk Factors -- Our Products Are Subject to
Governmental Regulations and Approvals," "Business -- Products,"
"-- Products in Development," "-- Competition" and "--
Government Regulation," insofar as such statements concern the
Federal Food, Drug and Cosmetic Act, the Public Health Services
Act and the Food and Drug Administration Modernization Act of
1997 and the regulations promulgated thereunder and any similar
foreign statutes and regulations, in each case, did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and that such statements
in the captions set forth above in the Prospectus, as amended or
supplemented, if applicable, do not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xiv) other than as set forth or contemplated in the
Prospectus, to the knowledge of such counsel, the Company has
not received any notice of infringement of or conflict with, and
such counsel has no knowledge of any infringement of or conflict
with, asserted rights of others with respect to its Intellectual
Property which could reasonably be expected to result in a
Material Adverse Effect;
26
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(xv) other than as set forth or contemplated in the
Prospectus, the discoveries, inventions, products or processes
of the Company referred to in the Registration Statement and the
Prospectus do not, to the knowledge of such counsel, infringe or
conflict with any rights of any third party, or any discovery,
invention, product or process which is the subject of a patent
application filed by any third party which patent application
has not been published or is otherwise known to the Company
except to the extent that any such infringement, individually or
in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect;
(xvi) other than as set forth or contemplated in the
Prospectus, no third party, including any academic or
governmental organization, possesses rights to the Company's
patents, patent applications or patent rights which, if
exercised, could reasonably be expected to have a Material
Adverse Effect; and
(xvii) to the knowledge of such counsel, the Company
has not received any notices or correspondence from the FDA or
any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension or
material modification of any studies, tests or preclinical or
clinical trials conducted by or on behalf of the Company which
termination, suspension or material modification could
reasonably be expected to have a Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of California and the General Corporation
Law of the State of Delaware, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that
the opinion of any such other counsel upon which they relied is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (iv) above, counsel may state
his opinion and belief is based upon his participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and review and discussion of the
contents thereof but is without independent check or verification except
as specified.
27
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The opinion of the General Counsel of the Company described
above shall be rendered to the Underwriters at the request of the
Company and shall so state therein;
(h) on the date hereof and the effective date of the most
recently filed post-effective amendment filed on or subsequent to the
date hereof to the Registration Statement and also on the Closing Date
or Additional Closing Date, as the case may be, Ernst & Young shall have
furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion
of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect to
the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(j) the Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved
for listing on the Exchange;
(k) on or prior to the Closing Date or Additional Closing
Date, as the case may be, the Company and the Selling Stockholder shall
have furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request; and
(l) the "lock-up" agreements, each substantially in the form
of Exhibit A hereto, among you and the directors and management
executive committee members of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date or Additional Closing Date, as
the case may be.
7. (a) The Company agrees to indemnify and hold harmless
each Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Shares and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim as-
28
-28-
serted) caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or 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, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
(or affiliate of such Underwriter which assists such Underwriter in the
distribution of the Shares) from whom the persons asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) The Selling Stockholder agrees to indemnify and hold
harmless each Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Shares and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the Company, its
directors, its officers who sign the Registration Statement and each person who
controls the Company within the meaning of either such Section, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or 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, but only with reference to information relating to the
Selling Stockholder furnished in writing by or on behalf of the Selling
Stockholder expressly for use in the Registration Statement or the Prospectus or
in any preliminary prospectus; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or affiliate of such Underwriter which assists such
Underwriter in the distribution of the Shares) from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
29
-29-
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
and the Selling Stockholder to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to the preceding
paragraphs of this Section 7, such person (the "Indemnified Person") shall
promptly notify the person or persons against whom such indemnity may be sought
(each an "Indemnifying Person") in writing, and such Indemnifying Persons, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person and not the Indemnifying Persons unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both an Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that no
Indemnifying Person shall, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Shares and such control persons of Underwriters shall be desig-
30
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nated in writing by X.X. Xxxxxx Securities Inc. and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company shall be designated in writing by the
Company and any such separate firm for the Selling Stockholder shall be
designated in writing by the Selling Stockholder. No Indemnifying Person shall
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, each Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, such Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 90 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in paragraphs (a) through
(c) of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder on the one hand and
the Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder on the one hand and the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Selling Stockholder and the
total underwriting discounts received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand 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 and the Selling
Stock-
31
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holder by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purposes) or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Stockholder set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company or the Selling Stockholder and (iii)
acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this
Agreement (or the obligations of the several Underwriters with respect to the
Option Shares) may be terminated in the absolute discretion of the
Representatives, by notice given to the Company and the Selling Stockholder, if
after the execution and delivery of this Agreement and prior to the Closing Date
(or, in the case of the Option Shares, prior to the Additional Closing Date) (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market,
32
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the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Shares being delivered at
the Closing Date or the Additional Closing Date, as the case may be, on the
terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of
(x) execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Selling Stockholder for the purchase of such Shares are not made within 36 hours
after such default, this Agreement (or the obligations of the several
Underwriters to purchase the Option Shares, as the case may be) shall terminate
without liability on the part of any non-defaulting Underwriter or the Selling
Stockholder. In any such case either the Representatives or the Selling
Stockholder shall have the right to postpone the Closing Date (or, in the case
of the Option Shares, the Additional Closing Date), but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any de-
33
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faulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company or the Selling Stockholder to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason any of the Company
or the Selling Stockholder shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company and the Selling Stockholder agree to reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of its counsel) reasonably incurred by the Underwriter in connection
with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Stockholder and the Underwriters, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by
the Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: 212-648-5705), Attention: Syndicate Department, copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:
212-269-5420), Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall
be given to it at its office, 0 XXX Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(telefax: 000-000-0000), Attention: Xxxxxxx X. Xxxxxxxxxx, Esq., Senior Vice
President, General Counsel. Notices to the Selling Stockholder shall be given to
it c/o Xxxxxxxx-Xx Xxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000
(telefax: 973-235-3500), Attention: Law Department, Xxxxxx Xxxx, Esq. Copies of
notices to any of the Company or the Selling Stockholder should be given to
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:
212-450-5527), Attention: Xxxxxxx X. Xxxxxxx, Esq.
13. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument.
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14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
35
If the foregoing is in accordance with your understanding,
please sign and return five counterparts hereof.
Very truly yours,
GENENTECH, INC.
By:
-------------------------------------
Name:
Title:
ROCHE HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
36
Accepted: July [ ], 1999
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
WARBURG DILLON READ LLC
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
Acting severally on behalf of themselves
and the several Underwriters
listed in Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By:
---------------------------------
Name:
Title:
37
SCHEDULE I
Number of
Underwritten
Shares
Underwriter To Be Purchased
----------- ---------------
X.X. Xxxxxx Securities Inc.............................................. [ ]
Xxxxxxx, Sachs & Co..................................................... [ ]
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated....................... [ ]
Warburg Dillon Read LLC................................................. [ ]
BancBoston Xxxxxxxxx Xxxxxxxx Inc....................................... [ ]
---------------
Total.................................................... 20,000,000
===============
38
Exhibit A
[Form of Lock-Up Agreement]