EXHIBIT 1.1
[ ,000] SHARES(1)
GENITOPE CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
May __, 0000
X.X. Xxxxxxxxx + Co., LLC
Punk, Xxxxxx & Company
Xxxxx Xxxxxx & Co., Inc.
Stanford Group Company
As Representatives of the several Underwriters,
x/x X.X. Xxxxxxxxx + Co., LLC
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Genitope Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to an aggregate of [_______,000] shares of its
authorized but unissued common stock, $0.001 par value per share (the "Common
Stock"), to the Underwriters (as hereinafter defined), for whom you (the
"Representatives") are acting as representatives (said [_______,000] shares of
Common Stock to be issued and sold by the Company being herein called the
"Underwritten Stock"). The Company has also granted the Underwriters an option
to purchase up to an aggregate of 555,000 additional shares of Common Stock (the
"Option Stock," and the Option Stock together with the Underwritten Stock being
hereinafter referred to as the "Shares"). The Common Stock is more fully
described in the Registration Statement and the Prospectus hereinafter
mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Shares by the Underwriters, named in Schedule 1 hereto (herein
collectively called the "Underwriters," which term shall also include any
underwriter purchasing Shares pursuant to Section 3(b) hereof). You represent
and warrant that you have been authorized by each of the other Underwriters to
enter into this Underwriting Agreement (this "Agreement") on its behalf and to
act for it in the manner herein provided.
-------------------------------
(1) Plus an option to purchase from the Company up to an aggregate of [____,000]
additional shares to cover over-allotments, if any.
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1. REGISTRATION STATEMENT. The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-1
(No. 333-_______), including the related preliminary prospectus, for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares. Copies of such registration statement and of each
amendment thereto, if any, including the related preliminary prospectus (meeting
the requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
(a) The term "Registration Statement" as used in this
Agreement shall mean such registration statement, including all exhibits and
financial statements, all information omitted therefrom in reliance upon Rule
430A and contained in the Prospectus referred to below, in the form in which it
became effective, and any registration statement filed pursuant to Rule 462(b)
of the rules and regulations of the Commission with respect to the Shares
(herein called a "Rule 462(b) registration statement"), and, in the event of any
amendment thereto after the effective date of such registration statement (the
"Effective Date"), shall also mean (from and after the effectiveness of such
amendment) such registration statement as so amended (including any Rule 462(b)
registration statement). The term "Prospectus" as used in this Agreement shall
mean the prospectus relating to the Shares first filed with the Commission
pursuant to Rule 424(b) and Rule 430A (or if no such filing is required, as
included in the Registration Statement) and, in the event of any supplement or
amendment to such prospectus after the Effective Date, shall also mean (from and
after the filing with the Commission of such supplement or the effectiveness of
such amendment) such prospectus as so supplemented or amended. The term
"Preliminary Prospectus" as used in this Agreement shall mean each preliminary
prospectus included in such registration statement prior to the time it becomes
effective.
(b) The Registration Statement has been declared effective
under the Securities Act, and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. The Company has
caused to be delivered to you copies of each Preliminary Prospectus and has
consented to the use of such copies for the purposes permitted by the Securities
Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Underwriters as follows:
(a) Neither the Commission nor any state securities commission
has issued any order preventing or suspending the use of any Preliminary
Prospectus or has instituted or, to the Company's knowledge, threatened to
institute any proceedings with respect to such an order. The Registration
Statement and the Prospectus comply, and on the Closing Date (as hereinafter
defined) and any later date on which the Option Stock is to be purchased, the
Prospectus will comply, in all material respects, with the provisions of the
Securities Act and the rules and regulations of the Commission thereunder (the
"Securities Act and Rules"). On the Effective Date, the Registration Statement
did not contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and on the Effective Date the
Prospectus did not, and on the Closing Date and the date upon which Option Stock
is delivered, will not, contain any untrue statement of a material fact and did
not and on the Closing Date and the date upon which Option Stock is delivered,
will not, omit to state any material fact required to be stated therein, or
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties in this subparagraph 2(a) shall
apply to statements in, or omissions from, the Registration Statement or the
Prospectus made in reliance upon and in conformity with information herein or
otherwise furnished in writing to the Company by or on behalf of the
Underwriters expressly for use in the Registration Statement or Prospectus.
(b) The Company (i) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, having corporate power and corporate authority to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and (ii) is duly qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in which the
character of the property owned or leased or the nature of the business
transacted by it makes qualification necessary (except where the failure to be
so qualified would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company). The
Company has no subsidiaries and does not own any capital stock or other equity
securities in any other entity, except for instruments or interests held by the
Company solely for investment.
(c) The Company has the duly authorized and validly issued
outstanding capitalization as of March 31, 2004 set forth under the caption
"Capitalization" in the Prospectus and will have the adjusted capitalization as
of March 31, 2004 (giving effect to the closing of the offering contemplated by
this Agreement) set forth therein on the Closing Date and any later date on
which the Option Stock is to be purchased, based on the assumptions set forth
therein. The securities of the Company conform to the descriptions thereof
contained in the Registration Statement and the Prospectus. The form of
certificates for the Shares conforms to the requirements of the Delaware General
Corporation Law. The outstanding shares of the Company's capital stock have been
duly authorized and validly issued by the Company and are fully paid and
nonassessable and, except as otherwise described in the Preliminary Prospectus,
the Prospectus and the Registration Statement, were issued in transactions that
were exempt from the registration requirements of the Securities Act, without
violation of any preemptive rights, rights of first refusal or similar rights.
Except as created hereby or otherwise described in the Registration Statement
and the Prospectus, there are no outstanding options, warrants, rights or other
arrangements requiring the Company at any time to issue any capital stock. No
holders of outstanding shares of capital stock of the Company are entitled as
such to any preemptive or other rights to subscribe for any of the Shares to be
sold by the Company, and neither the filing of the Registration Statement nor
the offering or sale of the Shares to be sold by the Company as contemplated by
this Agreement gives rise to any rights, other than those that have lapsed or
have been waived or satisfied, for or relating to, the registration of any
securities of the Company. The Shares to be sold by the Company are duly
authorized, and will be, when sold to the Underwriters as provided herein,
validly issued, fully paid and nonassessable and conform to the description
thereof contained in the section of the Registration Statement and the
Prospectus entitled "Description of Capital Stock." No further approval or
authority of the stockholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares to be sold by the Company as
contemplated herein.
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(d) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein. This Agreement has been duly authorized, executed and delivered by the
Company and, assuming it is a binding agreement of the Underwriters, constitutes
a legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting the enforcement of
creditors' rights and the application of equitable principles relating to the
availability of remedies and except as rights to indemnity or contribution may
be limited by federal or state securities laws and the public policy underlying
such laws), and none of the Company's execution or delivery of this Agreement,
its performance hereunder, its consummation of the transactions contemplated
herein, its application of the net proceeds of the offering in the manner set
forth under the caption "Use of Proceeds" or the conduct of its business as
described in the Registration Statement and the Prospectus, conflicts or will
conflict with or results or will result in any breach or violation of any of the
terms or provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or acceleration
of any liability or obligation or the termination of any right under, or result
in the creation or imposition of any lien, charge or encumbrance upon, any
property or assets of the Company pursuant to the terms of (i) the certificate
of incorporation or bylaws of the Company; (ii) any indenture, mortgage, deed of
trust, voting trust agreement, stockholders' agreement, note agreement or other
agreement or instrument to which the Company is a party or by which it is bound
or to which its respective property is subject; or (iii) any statute, judgment,
decree, order, rule or regulation applicable to the Company of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or its activities or properties, which materially and adversely affect
the business or properties of the Company.
(e) The Common Stock has been approved for quotation on The
Nasdaq National Market and, prior to the Closing Date, (i) the Common Stock
shall be listed and duly admitted to trading on The Nasdaq National Market and
(ii) the Shares will be authorized for inclusion in The Nasdaq National Market.
(f) The financial statements of the Company and the related
notes and schedules thereto included in the Registration Statement and the
Prospectus fairly present the financial position, results of operations,
stockholders' equity and cash flows of the Company at the dates and for the
periods specified therein. Such financial statements and the related notes and
schedules thereto have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
(except as otherwise noted therein) and all adjustments necessary for a fair
presentation of results for such periods have been made; provided, however, that
the unaudited financial statements are subject to normal year-end audit
adjustments (which are not expected to be material) and do not contain all
footnotes required under generally accepted accounting principles. The summary
and selected financial and statistical data included in the Registration
Statement and the Prospectus present fairly the information shown therein and
such data have been prepared on a basis consistent with the financial statements
contained therein and in the books and records of the Company.
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(g) PricewaterhouseCoopers, LLP who has certified our balance
sheets, related statements of operations, stockholders' deficit, and cash flows
at December 31, 2003 and December 31, 2002, and our results of operations and
cash flows for each of the three years in the period ended December 31, 2003,
filed with the Commission as part of the Registration Statement and the
Prospectus, are independent public accountants as required by the Securities Act
and the rules and regulations promulgated thereunder. All auditing services and
non-audit services, other than de minimus services, provided to the Company by
PricewaterhouseCoopers LLP since August 6, 2003, have been preapproved by the
Company's board of directors, which included the members of the audit committee
of the Company's board of directors, in accordance with Section 10A of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(h) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has disclosure controls and procedures (as defined in
Rules 13a-14 and 15d-14 under the Exchange Act) that are designed to ensure that
material information relating to the Company is made known to the Company's
principal executive officer and the Company's principal financial officer or
persons performing similar functions. The Company is otherwise in compliance in
all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations promulgated thereunder.
(i) The Company has filed all necessary federal, state and
local income, franchise and other material tax returns and has paid all taxes
shown as due thereunder, and the Company has no tax deficiency that has been or,
to their knowledge, that might be assessed against the Company that, if so
assessed, would materially and adversely affect the business or properties of
the Company. All tax liabilities accrued through the date hereof have been
adequately provided for on the books of the Company.
(j) The Company maintains insurance underwritten by insurers
of recognized financial responsibility of the types and in amounts and with such
deductibles as customary for companies in the same or similar business, all of
which insurance is in full force and effect.
(k) Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit, claim, proceeding or investigation pending
or, to the Company's knowledge, threatened against the Company before or by any
court, regulatory body or administrative agency or any other governmental agency
or body, domestic or foreign, that (i) questions the validity of the capital
stock of the Company or this Agreement or any action taken or to be taken by the
Company pursuant to or in connection with this Agreement; (ii) is required to be
disclosed in the Registration Statement and the
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Prospectus, which is not so disclosed (and such proceedings, if any, as are
summarized in the Registration Statement and the Prospectus are accurately
summarized in all material respects); or (iii) may have a material adverse
affect upon the business operations, financial condition or income of the
Company.
(l) All executed agreements or copies of executed agreements
filed or incorporated by reference as exhibits to the Registration Statement
have been duly and validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding agreements of the Company enforceable by
and against it in accordance with their respective terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to enforcement of creditors'
rights generally, and general equitable principles relating to the availability
of remedies, and except as rights to indemnity or contribution may be limited by
federal or state securities laws and the public policy underlying such laws).
The descriptions in the Registration Statement and the Prospectus of contracts
and other documents are accurate and fairly present the information required to
be shown with respect thereto by the Securities Act and Rules. There are no
contracts or other documents that are required by the Securities Act or Rules to
be described in the Registration Statement and the Prospectus or filed as
exhibits to the Registration Statement that are not described or filed as
required. The exhibits that have been filed are complete and correct copies of
the documents of which they purport to be copies. Except for such rights as are
described in the Registration Statement and the Prospectus, no party has any
right to require the Company to register any securities for sale under the
Securities Act.
(m) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as expressly
contemplated therein, the Company has not incurred, other than in the ordinary
course of its business, any material liabilities or obligations, direct or
contingent, purchased any of its outstanding capital stock, paid or declared any
dividends or other distributions on its capital stock or entered into any
material transactions, and there has been no material change in capital stock or
debt or any material adverse change in the business, properties, assets, net
worth, condition (financial or otherwise) or results of operations of the
Company, whether or not arising from transactions in the ordinary course of
business.
(n) The Company is not, nor with the giving of notice or lapse
of time or both will it be, in violation of or in default under, any term or
provision of (i) its certificate of incorporation or bylaws; (ii) any indenture,
mortgage, deed of trust, voting trust agreement, stockholders' agreement, note
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its property is subject, or any indebtedness, the
effect of which breach or default singly or in the aggregate may have a material
adverse effect on the business, management, properties, assets, rights,
operations or condition (financial or otherwise) of the Company; or (iii) any
statute, judgment, decree, order, rule or regulation applicable to the Company
or of any arbitrator, court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or its activities or properties and the effect of which violation or
default singly or in the aggregate may have a material adverse effect on the
business, management, properties, assets, rights, operations or condition
(financial or otherwise) of the Company.
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(o) The Company has not incurred any liability for a fee,
commission, or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other
than as contemplated hereby.
(p) No labor disturbance by the employees of the Company or
principal suppliers or customers of the Company exists or, to the Company's
knowledge, is imminent.
(q) Except as disclosed in the Registration Statement and the
Prospectus, the Company owns, is licensed or otherwise possesses all rights to
use, all patents, patent rights, inventions, know-how (including trade secrets
and other unpatented or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names, copyrights and
other intellectual property rights (collectively, the "Rights") necessary for
the conduct of its business as described in the Registration Statement and the
Prospectus. Except as disclosed in the Registration Statement and the
Prospectus, to the Company's knowledge, no claims have been asserted against the
Company by any person with respect to the use of any such Rights or challenging
or questioning the validity or effectiveness of any such Rights. Except as
disclosed in the Registration Statement and the Prospectus, the continued use of
the Rights in connection with the business and operations of the Company does
not, to the knowledge of the Company, infringe on the rights of any person,
which, if the subject of an unfavorable decision, ruling or filing, would have a
material adverse effect on the financial condition, business or properties of
the Company.
(r) Except as disclosed in the Registration Statement and the
Prospectus, the Company is conducting its businesses in compliance with all
applicable laws, ordinances or governmental rules or regulations of the
jurisdictions in which it is conducting business, except where the failure to be
so in compliance would not materially and adversely affect the business or
properties of the Company. Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") to qualify or exempt the
Shares for public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made and is in full force and effect.
(s) Neither the Company, nor, to the Company's knowledge, any
of its officers, directors or affiliates (within the meaning of the rules and
regulations promulgated under the Securities Act), has taken or may take,
directly or indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(t) The Company is not, nor after giving effect to the
issuance and sale of the Shares by the Company will it be, an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
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(u) There are no transfer taxes or similar fees or charges
under federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance and sale by the Company of the Shares.
(v) The Company has good and marketable title to all
properties and assets described in the Registration Statement and the Prospectus
as owned by it, free and clear of all liens, encumbrances, security interests,
equities, claims and defects, except such as are described in the Registration
Statement and Prospectus, or such as are not materially important in relation to
the business of the Company. The Company has valid and enforceable leases for
the properties described in the Registration Statement and the Prospectus as
leased by it, free and clear of all liens, encumbrances, security interests,
equities, claims and defects, except such as are not material and do not
interfere with the use made by the Company thereof. The Company owns or leases
all such properties as are necessary to its operations as now conducted, as set
forth in the Registration Statement and the Prospectus, and the properties and
businesses of the Company conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(w) The Company holds all franchises, licenses, permits,
approvals, certificates and other authorizations from federal, state and other
governmental or regulatory authorities necessary for the ownership, leasing and
operation of its properties or required for the present conduct of its business,
and such franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect and the Company is in
compliance therewith in all material respects, except where the failure so to
hold, obtain, maintain or comply with would not have a materially adverse effect
on the business, financial condition or results of operations of the Company.
(x) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder (herein called "ERISA"); no "reportable event" (as defined in ERISA)
has occurred with respect to any "pension plan" (as defined in ERISA) for which
the Company would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan"; or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "Pension Plan"
for which the Company would have liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(y) No relationship, direct or indirect, exists between or
among the Company, on the one hand, and the current or prior directors,
officers, stockholders, customers or suppliers of the Company, on the other
hand, which is required to be described in the Registration Statement and the
Prospectus that is not so described.
(z) Neither the Company nor any director, officer, agent,
employee or other person associated with or acting on behalf of the Company has
used any corporate funds
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for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provisions of the Foreign Corrupt Practices
Act of 1972; or made any bribe, rebate, payoff, influence, payment, kickback or
other unlawful payment.
(aa) Since December 31, 2003, the Company has not, directly or
indirectly, including through any subsidiary, extended or maintained credit,
arranged for the extension of credit or renewed an extension of credit in the
form of a personal loan to or for any director or executive officer in violation
of Section 13(k) of the Exchange Act.
(bb) The business, operations and facilities of the Company
have been and are being conducted or operated in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals, plans,
authorizations or requirements relating to occupational safety and health,
pollution, protection of health or the environment (including, without
limitation, those relating to emissions, discharges, release or threatened
releases of pollutants, contaminants or hazardous or toxic substances, materials
or wastes into ambient air, surface water, groundwater or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes, whether solid, gaseous or
liquid in nature) or otherwise relating to remediating real property in which
the Company has or has had any interest, whether owned or leased, of any
governmental department, commission, board, bureau, agency or instrumentality of
the United States, any state or political subdivision thereof and all applicable
judicial or administrative agency or regulatory decrees, awards, judgments and
orders relating thereto, except for such failures to so comply as would not,
individually or in the aggregate, have a material adverse effect on the business
of the Company, and the Company has not received any notice from a governmental
instrumentality or any third party alleging any violation thereof or liability
thereunder (including, without limitation, liability for costs of investigating
or remediating sites containing hazardous substances or damage to natural
resources).
(cc) Neither the Company nor any officer or employee of the
Company is a party to any contract or commitment that restricts in any material
respect the ability of the Company or such individual to engage in the business
of the Company as described in the Registration Statement and the Prospectus.
3. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company shall sell the
Underwritten Stock to the Underwriters, and the Underwriters agree to purchase
from the Company, the Underwritten Stock. The price at which such shares of
Underwritten Stock shall be sold by the Company and purchased by the
Underwriters shall be $[__.__] per share (the "Purchase Price"). In making this
Agreement, each Underwriter is contracting severally and not jointly; and except
as provided in paragraphs (b) and (c) of this Section 3, the agreement of each
Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified on Schedule 1.
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(b) If for any reason one of the Underwriters shall fail or
refuse (other than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 7 or 12 hereof) to purchase and pay
for the number of Shares agreed to be purchased by such Underwriter, the
non-defaulting Underwriters shall have the right within 24 hours after the
receipt by you of notice of such failure or refusal to so purchase, to purchase
or procure one or more other Underwriters to purchase, in such proportions as
may be agreed upon between you and such purchasing Underwriter and upon the
terms herein set forth, all or any part of the Shares that such defaulting
Underwriter agreed to purchase. If a non-defaulting Underwriter fails so to make
such arrangements with respect to all such Shares and portion, the number of
Shares that such non-defaulting Underwriter is otherwise obligated to purchase
under this Agreement shall be automatically increased on a pro rata basis to
absorb the remaining Shares and portion that the defaulting Underwriter agreed
to purchase; provided, however, that such non-defaulting Underwriter shall not
be obligated to purchase the Shares and portion that such defaulting Underwriter
agreed to purchase if the aggregate number of such Shares exceeds 10% of the
total number of Shares that the Underwriters agreed to purchase under this
Agreement. If the total number of Shares that the defaulting Underwriter agreed
to purchase shall not be purchased or absorbed in accordance with the two
preceding sentences, the Company shall have the right, within 24 hours next
succeeding the 24-hour period referred to above, to make arrangements with other
underwriters or purchasers satisfactory to you for purchase of such Shares and
portion on the terms herein set forth. In any such case, either you or the
Company shall have the right to postpone the Closing Date determined as provided
in Section 5 hereof for not more than seven business days after the date
originally fixed as the Closing Date pursuant to said Section 5 in order that
any necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made. If such non-defaulting Underwriter does
not make arrangements within the 24-hour periods stated above for the purchase
of all the Shares that such defaulting Underwriter agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and without any
liability on the part of the Company to the non-defaulting Underwriter or on the
part of the non-defaulting Underwriter to the Company. Nothing in this paragraph
3(b), and no action taken hereunder, shall relieve a defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Company grants an option to the Underwriters to purchase, severally
and not jointly, the Option Stock at the Purchase Price. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Stock by
the Underwriters and may be exercised in whole or in part at any time (but not
more than once) on or before the 30th day after the date of this agreement upon
written or electronic notice by the Underwriters to the Company setting forth
the aggregate number of shares of Option Stock as to which the Underwriters are
exercising the option. Delivery of the certificates for the shares of Option
Stock, and payment therefor shall be made as provided in Section 5 hereof. The
number of shares of Option Stock to be purchased by each Underwriter shall be in
such amounts as the Underwriters shall agree upon prior to the exercise of the
option set forth hereunder.
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4. OFFERING BY THE UNDERWRITERS.
(a) The terms of the public offering by the Underwriters of
the Shares to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the public offering and increase or decrease the concessions and
discounts to dealers as they may determine.
(b) The information set forth under the caption "Plan of
Distribution" in the Registration Statement, any Preliminary Prospectus and the
Prospectus relating to the Shares filed by the Company (insofar as such
information relates to the Underwriters or related persons) constitutes the only
information furnished by the Underwriters to the Company for inclusion in the
Registration Statement, any Preliminary Prospectus and the Prospectus, and you,
on behalf of the Underwriters, represent and warrant to the Company that the
statements made therein (insofar as they relate to the Underwriters or related
persons) are correct and do not omit any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
5. DELIVERY OF AND PAYMENT FOR THE SHARES.
(a) Delivery of certificates for the shares of the
Underwritten Stock and the Option Stock (if the option granted by Section 3(c)
hereof shall have been exercised not later than 8:00 A.M., San Francisco time,
on the date two business days preceding the Closing Date), and payment therefor,
shall be made at the office of Cooley Godward LLP, 0000 Xxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000, on the third business day after the date of this
Agreement, or at such time on such other day, not later than seven full business
days after such third business day, as shall be agreed upon in writing by the
Company and you. The date and hour of such delivery and payment are herein
called the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be
exercised after 8:00 A.M., San Francisco time, on the date two business days
preceding the Closing Date, delivery of certificates for the shares of Option
Stock, and payment therefor, shall be made at the office of Xxxxxx Godward LLP,
0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, on the third business day
after the exercise of such Option, or at such time on such other day, not later
than seven full business days after such third business day, as shall be agreed
upon in writing by the Company and you.
(c) Payment for the Shares purchased from the Company shall be
made to the Company or its order by wire transfer or one or more certified or
official bank check or checks in same day funds. Such payment shall be made upon
delivery of certificates for the Shares to you against receipt therefor signed
by you. Certificates for the Shares to be delivered to you shall be registered
in the name or names and shall be in such denominations as you may request at
least one business day before the Closing Date, in the case of Underwritten
Stock, and at least one business day prior to the purchase thereof, in the case
of Option Stock. Such certificates will be made available to the Underwriters
for inspection, checking and packaging on the business day preceding the Closing
Date or, in the case of Option Stock, by 12:00 P.M., San Francisco time, on the
business day preceding the date of purchase.
11
6. COVENANTS OF THE COMPANY. The Company covenants and agrees as
follows:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A; and (ii) not file with the Commission any amendment to the
Registration Statement or supplement to the Prospectus (A) of which the
Underwriters shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing and as to which filing
the Underwriters shall not have given their consent or (B) of which is not in
compliance with the Securities Act or the rules and regulations of the
Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Underwriters (i) of any request made by the
Commission for amendment of the Registration Statement, for supplement to the
Prospectus or for additional information; (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement, or
the institution or threat of any action, investigation or proceeding for that
purpose; or (iii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in any jurisdiction,
or the receipt by it of notice of the initiation or threatening of any
proceeding for that purpose. The Company will use its best efforts to prevent
the issuance of any such order and, if issued, to obtain the lifting or
withdrawal thereof as soon as possible.
(c) The Company will (i) on or before the Closing Date,
deliver to the Underwriters a signed copy of the Registration Statement as
originally filed and of each amendment thereto filed prior to the time the
Registration Statement becomes effective and, promptly upon the filing thereof,
a signed copy of each post-effective amendment, if any to the Registration
Statement (together with, in each case, all exhibits thereto unless previously
delivered to the Underwriters); (ii) as promptly as possible deliver to the
Underwriters, at such office as the Underwriters may designate, as many copies
of the Prospectus as the Underwriters may reasonably request; and (iii)
thereafter from time to time during the period in which a prospectus is required
by law to be delivered by an Underwriter or a dealer, likewise send to the
Underwriters as many additional copies of the Prospectus and as many copies of
any supplement to the Prospectus and of any amended prospectus, filed by the
Company with the Commission, as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer any event relating
to or affecting the Company, or of which the Company shall be advised in writing
by the Underwriters, shall occur as a result of which it is necessary, in the
opinion of counsel for the Company or of counsel for the Underwriters, to
supplement or amend the Prospectus in order to make the Prospectus not
misleading in light of the circumstances existing at the time it is delivered to
a purchaser of the Shares, the Company will forthwith prepare and file with the
Commission a supplement to the Prospectus or an amended prospectus so that the
Prospectus as so supplemented or amended will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
such Prospectus is delivered to such purchaser, not misleading. If, after the
public offering of the
12
Shares by the Underwriters and during such period, the Underwriters shall
propose to vary the terms of the offering thereof by reason of changes in
general market conditions or otherwise, you will advise the Company in writing
of the proposed variation, and, if in the opinion either of counsel for the
Company or of counsel for the Underwriters such proposed variation requires that
the Prospectus be supplemented or amended, the Company will forthwith prepare
and file with the Commission a supplement to the Prospectus or an amended
prospectus setting forth such variation. The Company authorizes the Underwriters
and all dealers to whom any of the Shares may be sold by the Underwriters to use
the Prospectus, as from time to time amended or supplemented, in connection with
the sale of the Shares in accordance with the applicable provisions of the
Securities Act and the applicable rules and regulations thereunder for such
period.
(e) Prior to the filing thereof with the Commission, the
Company will submit to you, for your information, a copy of any post-effective
amendment to the Registration Statement and any supplement to the Prospectus or
any amended prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you,
in the qualification of the Shares for offer and sale under the securities or
blue sky laws of such jurisdictions as you may designate and, during the period
in which a prospectus is required by law to be delivered by an Underwriter or a
dealer, in keeping such qualifications in good standing under said securities or
blue sky laws; provided, however, that the Company shall not be required to
qualify as a foreign corporation or file any general consent to service of
process in any jurisdiction in which it is not so qualified. The Company will
from time to time, prepare and file such statements, reports and other documents
as are or may be required to continue such qualifications in effect for so long
a period as you may reasonably request for distribution of the Shares.
(g) The Company agrees to pay the costs and expenses relating
to the following matters: (A) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Prospectus,
and each amendment or supplement to any of them; (B) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and all amendments or supplements to any
of them, as may, in each case, be reasonably requested for use in connection
with the offering and sale of the Shares; (C) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
the transfer agent fees and any stamp or transfer taxes in connection with the
original issuance and sale of the Shares; (D) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (E) the registration of the Shares under the Exchange Act and the
listing of the Shares on the Nasdaq National Market; (F) any registration or
qualification of the Shares for offer and sale under the securities or blue sky
laws of the several states and any other jurisdictions (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (G) any filings required to be made with
the National Association of Securities Dealers, Inc. (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (H) the transportation and other expenses incurred by or on
behalf of
13
Company representatives in connection with presentations to prospective
purchasers of the Shares; (I) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel) for
the Company; and (J) all other costs and expenses incident to the performance by
the Company of its obligations hereunder.
(h) As soon as practicable, but in any event not later than 45
days after the end of the first fiscal quarter first occurring after the first
anniversary of the Effective Date, the Company will make generally available to
its security holders, in the manner specified in Rule 158(b) of the rules and
regulations promulgated under the Securities Act, an earnings statement that
will be in the detail required by, and will otherwise comply with, the
provisions of Section 11(a) of the Securities Act and Rule 158(a) of the rules
and regulations promulgated thereunder.
(i) During a period of three years after the date hereof, the
Company will furnish or make available to the Underwriters copies of all
periodic and special reports furnished to the stockholders of the Company and
copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on
Form 10-Q, Report on Form 8-K or any other information, documents or reports
filed with the Commission.
(j) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
(which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will not, directly or indirectly, without the
prior written consent of X.X. Xxxxxxxxx + Co., LLC, on behalf of the
Underwriters, issue, offer, sell, grant any option to purchase or otherwise
dispose (or announce any issuance, offer, sale, grant of any option to purchase
or other disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock for
a period of 90 days following the commencement of the public offering of the
Shares by the Underwriters, except (i) pursuant to this Agreement, (ii) pursuant
to the exercise of warrants outstanding on the date hereof and as described in
the Prospectus or (iii) pursuant to the exercise of stock options outstanding on
the date hereof, or granted subsequent to the date hereof, pursuant to a stock
option or other employee benefit plan in existence on the date hereof and as
described in the Prospectus.
(l) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and
will use its best efforts to cause its officers, directors or affiliates not to
take, directly or indirectly, any action designed to, or that might in the
future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds" in
the Prospectus.
(o) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Securities Act,
the rules and regulations promulgated thereunder, the Exchange Act and the rules
and
14
regulations promulgated thereunder, and all such reports, forms and documents
filed will comply as to form and substance with the applicable requirements
under the Securities Act, the rules and regulations promulgated thereunder, the
Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company is familiar with the Investment Company Act of
1940, as amended, and has in the past conducted its affairs, and will in the
future conduct its affairs, in such a manner to ensure that the Company was not
and will not be an "investment company" or a "company" controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
(q) The Company either has caused to be delivered to you or
will cause to be delivered to you prior to the effective date of the
Registration Statement a letter (the "Lock-Up Agreement") from (i) each of the
Company's directors and certain of the Company's executive officers and
stockholders stating that such person agrees that he or she will not, without
the prior written consent of X.X. Xxxxxxxxx + Co., LLC directly or indirectly,
sell, offer, contract or grant any option to sell (including without limitation
any short sale), pledge, transfer, establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act or otherwise dispose
of (or enter into any transaction that is designed to, or could be expected to,
result in the disposition by any person of) any shares of Common Stock, options
or warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock currently or
hereafter owned either of record or beneficially (within the meaning of Rule
13d-3 under the Exchange Act) by him or her, or publicly announce his or her
intention to do any of the foregoing, for a period of 90 days after the first
date any Underwritten Stock is released by the Underwriters for sale to the
public and (ii) certain of the Company's other stockholders containing identical
restrictions to the Lock-Up Agreements referred to in (i) above.
(r) The Company will comply in all material respects with all
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated by the Commission thereunder.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters under this Agreement are subject to the performance by
the Company on and as of the Closing Date or any later date on which Option
Stock is to be purchased, as the case may be, of its respective covenants and
agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective,
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued, and no proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission.
(b) The Underwriters shall be satisfied that (i) as of the
Effective Date, the statements made in the Registration Statement and the
Prospectus were true and correct and neither the Registration Statement nor the
Prospectus omitted to state a fact required to be stated therein or that is
necessary to make the statements therein not misleading; (ii) since the
Effective
15
Date, no event has occurred that should have been set forth in a supplement or
amendment to the Prospectus that has not been set forth in an effective
supplement or amendment; (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in the business, properties, financial condition or
results of operations of the Company, whether or not arising from transactions
in the ordinary course of business, and since such dates, except in the ordinary
course of business, the Company has not entered into any material transaction
not referred to in the Registration Statement in the form in which it originally
became effective and the Prospectus contained therein; (iv) the Company does not
have any material contingent obligations that are not disclosed in the
Registration Statement and the Prospectus; (v) there are no pending or, to the
Company's knowledge, threatened legal proceedings to which the Company is a
party or of which property of the Company is subject that are material and that
are not disclosed in the Registration Statement and the Prospectus; (vi) there
are not any franchises, contracts, leases or other documents that are required
to be filed as exhibits to the Registration Statement that have not been filed
as required; and (vii) the representations and warranties of the Company herein
are true and correct in all material respects as of the Closing Date or any
later date on which Option Stock is to be purchased, as the case may be.
(c) On or prior to the Closing Date, the legality and
sufficiency of the sale of the Shares hereunder and the validity and form of the
certificates representing the Shares, all corporate proceedings and other legal
matters incident to the foregoing, and the form of the Registration Statement
and of the Prospectus (except as to the financial statements and financial
information contained therein), shall have been approved at or prior to the
Closing Date by Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters. The
Underwriters shall have received from counsel to the Underwriters, such opinion
or opinions with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as the
Underwriters reasonably may request and such counsel shall have received such
documents and other information as they request to enable them to pass upon such
matters.
(d) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date or, if
related to the later sale of Option Stock, such later date, of Xxxxxx Godward
LLP, counsel to the Company, to the effect set forth in Exhibit A hereto. In
rendering any such opinion, such counsel may rely, as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and public officials.
(e) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated as of the Closing Date
or, if related to the later sale of Option Stock, such later date, of Xxxxx,
Xxxxxx & XxXxxxxx, P.C. regulatory counsel to the Company, to the effect set
forth in Exhibit B hereto.
(f) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option
16
Stock, such later date, of Xxxxxx & Xxxxxxx, LLP, patent counsel to the Company,
to the effect set forth in Exhibit C hereto.
(g) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option Stock, such later date, of Bozicevic,
Field & Xxxxxxx, LLP patent counsel to the Company, to the effect set forth in
Exhibit D hereto.
(h) On the Closing Date, and if Option Stock is purchased at
any date after the Closing Date, on such later date, the Underwriters shall have
received an opinion addressed to the Underwriters, dated the Closing Date, or,
if related to the later sale of Option Stock, such later date, of Xxxx, Xxxx,
Xxxx & Freidenrich, patent counsel to the Company, to the effect set forth in
Exhibit E hereto.
(i) You shall have received from PricewaterhouseCoopers, LLP a
letter addressed to the Underwriters dated the Closing Date and any later date
on which Option Stock is purchased, confirming that PricewaterhouseCoopers, LLP
are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder and based upon the procedures described in their letter delivered to
the Underwriters concurrently with the execution of this Agreement (the
"Original Letter"), but carried out to a date not more than three business days
prior to the Closing Date or such later date on which Option Stock is purchased
(i) confirming, to the extent true, that the statements and conclusions set
forth in the Original Letter are accurate as of the Closing Date or such later
date, as the case may be; and (ii) setting forth any revisions and additions to
the statements and conclusions set forth in the Original Letter that are
necessary to reflect any changes in the facts described in the Original Letter
since the date of the Original Letter or to reflect the availability of more
recent financial statements, data or information. The letters shall not disclose
any change, or any development involving a prospective change, in or affecting
the business or properties of the Company which in your sole judgment makes it
impractical or inadvisable to proceed with the public offering of the Shares or
the purchase of the Option Stock as contemplated by the Prospectus.
(j) The Company shall deliver to you a copy of a letter from
PricewaterhouseCoopers LLP, addressed to the Company, stating that their review
of the Company's internal accounting controls, to the extent they deemed
necessary in establishing the scope of their examination of the Company's
consolidated balance sheets, related consolidated statements of operations,
stockholders' equity, and cash flows as of December 31, 2003 and 2002, and the
results of operations and cash flows for each of the three years in the period
ended December 31, 2003, did not disclose any weaknesses in internal controls
that they considered to be material weaknesses.
(k) Prior to the Closing Date, and on any later date on which
Option Stock is purchased, you shall have received a certificate, dated the
Closing Date or such later date, as the case may be, signed by the Chief
Executive Officer and Chief Financial Officer of the Company stating that the
respective signers of said certificate have carefully examined the Registration
Statement in the form in which it originally became effective and the Prospectus
17
contained therein and any amendments or supplements thereto and this Agreement,
and that the statements included in paragraph (b) of this Section 7 are true and
correct.
(l) Prior to the Closing Date, and on any later date on which
Option Stock is purchased, you shall have received a certificate, dated the
Closing Date or such later date, as the case may be, signed by the Secretary of
the Company to the effect that, as of the Closing Date or any later date on
which Option Stock is purchased, as the case may be, the Secretary certifies as
to the accuracy of the Company's charter and bylaws, the resolutions of the
Board of Directors relating to the offering contemplated hereby, the form of
stock certificate representing the Shares, and copies of all communications with
the Commission; as to the execution and delivery of this Agreement; as to the
incumbency and signature of persons signing this Agreement, the Registration
Statement and other related documents; as to the approval of the Shares for
listing on the Nasdaq National Market; as to the Company's compliance with all
agreements and performance or satisfaction of all conditions required hereunder;
as to the consideration received for all outstanding shares of the Company's
Common Stock; and as to such other matters as Underwriters' counsel may
reasonably request.
(m) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(n) You shall have been furnished evidence in the usual
written or electronic form from the appropriate authorities of the several
jurisdictions, or other evidence satisfactory to you, of the qualification
referred to in paragraph (f) of Section 6 hereof.
(o) Prior to the Closing Date, the Shares shall have been duly
authorized for inclusion on the Nasdaq National Market, subject only to official
notice of issuance.
(p) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(q) On or prior to the Closing Date, X.X. Xxxxxxxxx + Co., LLC
shall have received from all directors and certain executive officers and
stockholders agreements, reasonably satisfactory to X.X. Xxxxxxxxx + Co., LLC,
stating that such person or entity will not, without the prior written consent
of X.X. Xxxxxxxxx + Co., LLC, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by such person or entity or any affiliate of such person or entity or
any person in privity with such person or entity or any affiliate of such person
or entity) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
other shares of Common Stock or any securities convertible into, or exercisable,
or exchangeable for, shares of Common Stock; or publicly announce an intention
to effect any such transaction, for a period of 90 days after the Closing Date.
18
In case any of the conditions specified in this Section 7 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company; provided,
however, that (i) in the event of such termination, the Company agrees to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company under this Agreement,
including all costs and expenses referred to in paragraph (g) of Section 6
hereof; and (ii) if this Agreement is terminated by you because of any refusal
or failure on the part of the Company to perform any of its obligations or
agreements contained herein, to fulfill any of the conditions herein, or to
comply with any provision hereof other than by reason of a default by the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
transactions contemplated hereby.
8. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
(a) The obligations of the Company to deliver the Shares shall be
subject to the conditions that (i) the Registration Statement shall have become
effective and (ii) no stop order suspending the effectiveness thereof shall be
in effect and no proceedings therefor shall be pending or threatened by the
Commission.
(b) In case either of the conditions specified in paragraph (a) of
this Section 8 shall not be fulfilled, this Agreement may be terminated by the
Company by giving notice to you. Any such termination shall be without liability
of the Company to the Underwriters and without liability of the Underwriters to
the Company; provided, however, that in the event of any such termination the
Company agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company under
this Agreement, including all costs and expenses referred to in paragraph (g) of
Section 6 hereof.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) Subject to the provisions of paragraph (d) of this Section 9,
the Company agrees to indemnify and hold harmless each Underwriter (and any
person participating in the distribution who is deemed to be an underwriter (as
defined in Section 2(11) of the Securities Act) and each person (including each
member or officer thereof), if any, who controls any Underwriter or such person
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages or
liabilities, joint or several (and actions in respect thereof), to which such
indemnified parties or any of them may become subject, under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, and the Company agrees to reimburse each such
Underwriter or any other such indemnified party and each such officer, director
and controlling person for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel) as
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities, or in connection with
any investigation or inquiry of, or other proceeding that may be brought
against, the respective indemnified parties, in each case arising out of or that
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration
19
Statement (including the Prospectus as part thereof and any Rule 462(b)
registration statement) or any post-effective amendment thereto (including any
Rule 462(b) registration statement) or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary Prospectus or the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment thereof or supplement thereto) or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstance under
which they were made, not misleading, and (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or on
behalf of the Company including, without limitation, slides, videos, films or
tape recordings, used in connection with the marketing of the Shares, including
without limitation, any untrue or alleged untrue statements communicated to
securities analysts employed by the Underwriters; provided, however, that (i)
the indemnity agreement of the Company contained in this paragraph (a) shall not
apply to any such loss, claim, damage, liability or action if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter expressly for use
in any Preliminary Prospectus or the Registration Statement or the Prospectus or
any such amendment thereof or supplement thereto and (ii) the indemnity
agreement contained in this paragraph (a) with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or such persons)
if the person asserting any such loss, claim, damage, liability or action
purchased Shares that are the subject thereof to the extent that any such loss,
claim, damage, liability or action (A) results from the fact that such
Underwriter (or such persons) failed to send or give a copy of the Prospectus
(as amended or supplemented) to such person at or prior to the confirmation of
the sale of such Shares to such person in any case where such delivery is
required by the Securities Act and (B) arises out of or is based upon an untrue
statement or omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and supplemented),
unless such failure resulted from non-compliance by the Company with paragraph
(c) of Section 6 hereof. The indemnity agreements of the Company contained in
this paragraph (a) and the representations and warranties of the Company
contained in Section 2 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery and payment for the Shares.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the other Underwriters against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject, under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise and to
reimburse each of them for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel)
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities or in connection with
any investigation or inquiry of, or other proceeding that may be brought
against, the respective indemnified parties, in each case arising out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement (including
20
the Prospectus as part thereof and any Rule 462(b) registration statement) or
any post-effective amendment thereto (including any Rule 462(b) registration
statement) or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (ii) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstance under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such statement or omission was made in reliance upon and in conformity with
information furnished as herein stated or otherwise furnished in writing by or
on behalf of such indemnifying Underwriter to the Company expressly for use in
the Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto, and will reimburse, as incurred, all legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. The indemnity agreement of each Underwriter
contained in this paragraph (b) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery and payment for the Shares.
(c) Each party indemnified under the provisions of paragraph (a) or
(b) of this Section 9 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against it, in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, such indemnified party will promptly notify any party or parties
from whom indemnification may be sought hereunder of the commencement thereof in
writing. No indemnification provided for in such paragraphs shall be available
to any party who shall fail to give such notice if the party to whom such notice
was not given was unaware of the action, suit, investigation, inquiry or
proceeding to which such notice would have related and was prejudiced by the
failure to give the notice, but the omission to notify such indemnifying party
or parties of any such service or notification shall not relieve such
indemnifying party or parties from any liability that it or they may have to the
indemnified party for contribution or otherwise than on account of such
indemnity agreement. Any indemnifying party or parties against which a claim is
to be made will be entitled, at its own expense, to participate in the defense
of such action, suit, investigation or inquiry of, an indemnified party. Any
indemnifying party shall be entitled, if it so elects within a reasonable time
after receipt of notice from the indemnified party or parties of an action,
suit, investigation or inquiry to which indemnity may be sought, to assume the
entire defense thereof (alone or in conjunction with any other indemnifying
party or parties), at its own expense, in which case such defense shall be
conducted by counsel reasonably satisfactory to the indemnified party or
parties; provided, however, that (i) if the indemnified party or parties has
reasonably concluded that there may be a conflict between the positions of the
indemnifying party or parties and of the indemnified party or parties in
conducting the defense of such action, suit, investigation, inquiry or
proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or parties
shall be entitled to conduct such defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
or parties; and (ii) in any event, the indemnified party or parties
21
shall be entitled to have counsel chosen by such indemnified party or parties
participate in, but not conduct, the defense. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses (other than the reasonable costs of
investigation) subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party has employed such
counsel in connection with the assumption of different or additional legal
defenses in accordance with the proviso to the immediately preceding sentence;
or (ii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party. If
no such notice to assume the defense of such action has been given within a
reasonable time of the indemnified party's or parties' notice to such
indemnifying party or parties, the indemnifying party or parties shall be
responsible for any and all legal or other expenses incurred by the indemnified
party or parties in connection with the defense of the action, suit,
investigation, inquiry or proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
referred to in paragraphs (a) and (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by each of the
contributing parties from the offering of the Shares; or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each of the contributing
parties, on the one hand, and the party to be indemnified, on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares (after deducting the
underwriting discount but before deducting expenses) and the total underwriting
discount received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus, bear to the aggregate public offering price of
the Shares. Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission.
The parties agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were to be determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable
consideration referred to above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this paragraph (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the
22
underwriting discount applicable to the Shares purchased by the Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations in this paragraph (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect to which a claim for contribution may be made against another
party or parties under this paragraph (d), it will promptly notify such party or
parties from whom contribution may be sought, but the omission to notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it may have hereunder or otherwise
(except as specifically provided in paragraph (c) of this Section 9). The
contribution agreement set forth above shall be in addition to any liabilities
that any indemnifying party may have at common law or otherwise.
(e) No indemnifying party will, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any person who controls such Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act is a party
to such claim, action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of such indemnified party and each
such controlling person from all liability arising out of such claim, action,
suit or proceeding.
10. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other
obligations under Section 9 of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
paragraph (a) of Section 9 of this Agreement, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the obligations
under this Section 10 and the possibility that such payments might later be held
to be improper; provided, however, that (i) to the extent that any such payment
is ultimately held to be improper, the Underwriters shall promptly refund it;
and (ii) the Underwriters shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
11. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
23
12. TERMINATION.
(a) In addition to the termination described in Section ERROR!
REFERENCE SOURCE NOT FOUND. hereof, this Agreement (except for the provisions of
Section 9 hereof) may be terminated by you by notice to the Company at any time
prior to the Closing Date if: (i) the Company shall have sustained a loss by
strike, fire, flood, accident or other calamity of such a character as to
interfere materially with the conduct of the business and operations of the
Company regardless of whether or not such loss was insured; (ii) trading in the
Common Stock shall have been suspended or trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limitations on such trading shall have been
imposed or limitations on prices shall have been established on any such
exchange or market system; (iii) an escalation of major hostilities or
international conflict involving the United States or the declaration of war or
a national emergency by the United States on or after the date hereof shall have
occurred; (iv) any outbreak of hostilities, act of terrorism or other national
or international calamity or crisis or material adverse change in economic or
political conditions shall have occurred if the effect of such outbreak,
terrorist act, calamity, crisis or change in economic or political conditions in
the financial markets of the United States would, in your reasonable judgment,
make the offering or delivery of the Shares impracticable; (v) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of, or commencement of any proceeding or investigation
by, any court, legislative body, agency or other governmental authority shall
have occurred that in the Underwriters' reasonable opinion materially and
adversely affects or will materially or adversely affect the business or
operations of the Company; (vi) a banking moratorium shall have been declared by
New York or United States authorities; or (vii) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs shall have occurred that in your reasonable judgment has a
material adverse effect on the securities markets in the United States.
(b) If this Agreement is terminated pursuant to this Section 12,
there shall be no liability of the Company to the Underwriters and no liability
of the Underwriters to the Company; provided, however, that in the event of any
such termination, the Company agrees to indemnify and hold harmless the
Underwriters from all expenses incident to the performance of the obligations of
the Company under this Agreement, including all costs and expenses referred to
in paragraph (g) of Section 6. Notwithstanding any termination of this
agreement, the provisions of Section 9 hereof shall survive and remain in full
force and effect.
13. NOTICES. All communications hereunder shall be in writing and if sent
to the Underwriters shall be mailed or delivered or emailed and confirmed by
letter or telecopied and confirmed by letter to X.X. Xxxxxxxxx + Co., LLC at 000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxx Xxxxxxxx, Esq. with
copies to Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attn: Xxxxx X. Xxxx, Esq., or, if sent to the Company, shall be mailed or
delivered or emailed and confirmed to the Company at 000 Xxxxxxxxx Xxxxx,
Xxxxxxx Xxxx, XX 00000 with copies to Xxxxxx Godward LLP, 0000 Xxxxxxx Xxxxxx,
Xxxx Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxx, Esq.
14. SUCCESSORS. This agreement shall be to the benefit of and be binding
upon the Company and the Underwriters and, with respect to the provisions of
Section 9 hereof, the
24
several parties (in addition to the Company and the Underwriters) indemnified
under the provisions of said Section 9, and their respective personal
representatives, successors and assigns. Nothing in this agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this agreement, or any provisions herein
contained. The term "successors and assigns" as herein used shall not include
any purchaser, as such purchaser, of any of the Shares from the Underwriters.
15. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
16. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of California. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in the federal courts of the United States
of America located in the City and County of San Francisco or the courts of the
State of California in each case located in the City and County of San Francisco
(collectively, the "Specified Courts"), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court, as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit,
action or other proceeding brought in any such court has been brought in an
inconvenient forum.
[INTENTIONALLY LEFT BLANK]
25
If the foregoing correctly sets forth our understanding, please indicate
the Underwriters' acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
GENITOPE CORPORATION
By:
----------------------------------------
Name: Xxx X. Xxxxxx Xx., PhD
Title: Chairman and Chief Executive Officer
Accepted as of the date first above written:
X.X. XXXXXXXXX + CO., LLC
PUNK, XXXXXX & COMPANY
XXXXX XXXXXX & CO., INC.
STANFORD GROUP COMPANY
AS REPRESENTATIVES OF THE UNDERWRITERS
By: X.X. Xxxxxxxxx + Co., llc
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
26
SCHEDULE 1
UNDERWRITERS
NUMBER OF SHARES
TO BE PURCHASED
UNDERWRITERS FROM THE COMPANY
------------ ----------------
X.X. Xxxxxxxxx + Co., LLC
Punk, Xxxxxx & Company
Xxxxx Xxxxxx & Co., Inc.
Stanford Group Company
27
EXHIBIT A
Form of Opinion of Xxxxxx Godward on Behalf of the Company
(a) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its properties and to conduct its business
as described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each state of the United States in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company.
(b) The Company has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization" (as of the date set forth
therein).
(c) The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of the Underwriting Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of the Shares will not be
subject to any preemptive or similar rights under the certificate of
incorporation or bylaws of the Company, any agreement or other instrument filed
as an exhibit to the Registration Statement or under the Delaware General
Corporation Law.
(d) To our knowledge, the Company does not have any subsidiaries.
(e) To our knowledge, there is no holder of any shares of capital stock of
the Company that has any rights that have not been waived to require
registration under the Securities Act of any shares of capital stock of the
Company in connection with the filing of the Registration Statement.
(f) To our knowledge, there are no rights of any holders of the shares of
capital stock of the Company to require the Company to register any securities
under the Securities Act that are not described in the Registration Statement
and the Prospectus.
(g) The Company has the corporate power and authority to enter into the
Underwriting Agreement. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will not
contravene any provision of applicable law (other than applicable state
securities and blue sky laws, as to which we do not express an opinion), the
certificate of incorporation or bylaws of the Company or, to our knowledge, any
agreement or other instrument filed as an exhibit to the Registration Statement.
(i) No consent, approval, authorization or order of any court,
governmental body or agency is required for the performance by the Company of
its obligations under the Underwriting Agreement, except such as may be required
by (i) the
1
Securities Act, which have been obtained, (ii) the rules and regulations of the
National Association of Securities Dealers, Inc., as to which we express no
opinion or (iii) the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares, as to which we express no
opinion.
(j) To our knowledge, (i) the Registration Statement has become effective
under the Securities Act, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission; and (ii) the
required filing of the Prospectus pursuant to Rule 424(b) under the Securities
Act has been made in the manner and within the time period required by Rule
424(b).
(k) The Registration Statement and the Prospectus (except for the
financial statements, related notes and financial schedules and other financial
and statistical data derived therefrom, as to which we express no opinion),
comply as to form in all material respects with the requirements of the
Securities Act and Rules.
(l) The statements relating to legal matters, documents or proceedings
included (1) in the Prospectus under the captions "Description of Our Capital
Stock", "Shares Eligible for Future Sale" and "Certain Relationships and Related
Transactions" and (2) in the Registration Statement in Items 14 and 15
(excluding paragraph 16 in Item 15) insofar as such statements purport to
summarize legal matters, agreements or documents discussed therein, fairly
present to the extent required by the Securities Act and Rules, in all material
respects, such legal matters, agreements or documents.
(m) The Company is not and will not be, after giving effect to the
issuance and sale of the Shares, an "investment company" or a "company"
controlled by an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder.
(n) To our knowledge, there are no legal or governmental proceedings
pending or overtly threatened to which the Company is a party or to which any of
the properties of the Company is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described.
(o) The Shares have been duly authorized for inclusion in The Nasdaq
National Market upon official notice of issuance.
*****
2
In the course of the preparation of the Registration Statement and the
Prospectus, we have participated in conferences with officers of the Company,
representatives of its independent public accountants, and representatives of
the Underwriters and their counsel during which the contents of the Registration
Statement and the Prospectus were discussed, and while we have not independently
verified, are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the Registration Statement or Prospectus, we advise
you that nothing has come to our attention that causes us to believe that (A)
the Registration Statement (except for the financial statements and financial
schedules and other financial and statistical data derived therefrom, as to
which we express no belief) at the time the Registration Statement became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (B) the Prospectus (except for the financial statements and
financial schedules and other financial and statistical data derived therefrom,
as to which we express no belief) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
3
EXHIBIT B
Form of Opinion by Xxxxx, Xxxxxx & XxXxxxxx, P.C., regulatory counsel to the
Company
4
Ladies and Gentlemen:
This firm has acted as special Food and Drug Administration ("FDA")
counsel to Genitope Corporation (the "Company") with regard to the issuance and
sale by the Company of ____,000 shares of common stock pursuant to the
Underwriting Agreement dated [date]. In that capacity, we have reviewed the
Company's Registration Statement on Form S-1, which was filed with the
Securities and Exchange Commission on [date] (the "Registration Statement"), and
the Prospectus related thereto dated [date] (the "Prospectus"), as they pertain
to regulatory matters involving the U.S. Food and Drug Administration ("FDA")
and, in particular, certain matters arising under the Federal Food, Drug, and
Cosmetic Act ("FDC Act"), as amended and the Public Health Service Act ("PHS
Act"). We have been advised by Company counsel that the Registration Statement
was declared effective on [date] (the "Effective Date").
In our review, we have assumed the accuracy and completeness of all
statements of fact relating to the Company and its products and have made no
independent investigation for purposes of rendering this opinion. This opinion
is to the best of our knowledge and relates solely to matters of law.
Based on and subject to the foregoing:
We have read the portions of the Registration Statement and the Prospectus
under the captions "Prospectus Summary;" "Risk Factors -- If clinical trials of
MyVax, or any other immunotherapies that we may develop, do not produce
successful clinical trial results, we will be unable to commercialize these
products;" "Risk Factors -- Delays in clinical testing could result in increased
costs to us and delay our ability to generate revenue;" "Risk Factors -- We rely
on third parties to conduct our clinical trials. If these third parties do not
successfully carry out their contractual duties or meet expected deadlines, we
may not be able to obtain regulatory approval for or commercialize MyVax, or any
other immunotherapies that we may develop;" "Risk Factors -- We are subject to
extensive regulation, which can be costly, time consuming and subject us to
unanticipated delays or prevent us from obtaining the required approvals to
commercialize MyVax, or any other immunotherapies that we may develop;" "Risk
Factors - Even if MyVax, or any other immunotherapies that we may develop,
received regulatory approval, we may still face development and regulatory
difficulties relating to MyVax, or any other immunotherapies that we may
develop, in the future;" "Risk Factors -- Obtaining regulatory approval of our
manufacturing facility or disruptions in our manufacturing process may delay or
disrupt our commercialization efforts;" "Risk Factors -- We currently depend on
single source suppliers for critical raw materials for manufacturing, as well as
other components required for the administration of MyVax. The loss of these
suppliers could delay our clinical trials or prevent or delay commercialization
of MyVax;" "Management's Discussion and Analysis of Financial Condition and
Results of Operation -- Overview;" "Business -- Overview;" "Business - Our
Strategy;" "Business -- MyVax Clinical Development Program;" and "Business -
Government Regulation" (collectively referred to herein as the "Regulatory
Portion"), and we are of the opinion that the statements therein are accurate
and complete in all
5
material respects insofar as such statements constitute descriptions or
summaries of matters of the law arising out of the FDC Act, the PHS Act, and the
applicable FDA regulations.
Nothing has come to our attention which has caused us to believe that the
information in the Regulatory Portion as of the date hereof, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion has been prepared
solely for your use in connection with the public offering and may not be used,
quoted or otherwise referred to by any person without the written consent of
this firm.
Sincerely,
Xxxxx, Xxxxxx & XxXxxxxx, P.C.
[Attorney Name]
--/--
6
EXHIBIT C
Form of Opinion by Xxxxxx & Xxxxxxx, LLP, patent counsel to the Company
7
Form of Opinion of Xxxxxx & Xxxxxxx, LLP
Patent Counsel to the Company
1. Such counsel is familiar with the technology used by the Company in its
business and the manner of its use thereof and has read the Registration
Statement and the Prospectus, including particularly the portions of the
Registration Statement and the Prospectus referring to patents. Such counsel has
acted as special patent counsel to the Company in connection with all of the
Company's issued patents and patent applications.
2. The statements in the Registration Statement and the Prospectus under
the captions "Prospectus Summary;" "Risk Factors -- If we are sued for
infringing intellectual property rights of third parties, it will be costly and
time consuming, and an unfavorable outcome in that litigation would have a
material adverse effect on our business;" "Risk Factors -- Because it is
difficult and costly to protect our proprietary rights, we may not be able to
ensure their protection;" "Risk Factors -- We are not able to prevent others,
including potential competitors, from using the patient-specific idiotype
protein-KLH conjugate, comprising a single idiotype protein, that we use in our
lead product candidate, MyVax, for the treatment of indolent B-cell NHL;"
"Business -- Overview;" "Business -- MyVax Personalized Immunotherapy;"
"Business - Our Strategy" -- "Business -- Additional Hi-Get Technology
Applications" and "Business -- Intellectual Property." (collectively referred to
herein as the "Intellectual Property Portion"), to such counsel's knowledge,
insofar as such statements constitute a summary of the Company's patents and
patent applications are in all material respects accurate summaries and fairly
summarize in all material respects the legal matters, documents and proceedings
relating to the Company's patents and the Company's patent applications.
3. The Company is listed in the records of the United States Patent and
Trademark Office as the holder of record of the patents listed on Schedule I to
be attached hereto which are all of the Company's U.S. patents (the "Patents")
and each of the applications listed on Schedule I are all of the Company's U.S.
patent applications (the "Applications"). Information concerning the application
number, filing data and status of the Patents and Applications are set forth on
Schedule II. To the best knowledge of such counsel, there are no claims of third
parties to any ownership interest or lien with respect to any of the Patents or
Applications. To the best knowledge of such counsel, the Company owns as its
sole property the Patents and pending Applications. To such counsel's knowledge,
none of the U.S. Patents is subject to an interference, reexamination, reissue
examination or declaratory action. To such counsel's knowledge, none of the U.S.
Applications has been appealed, finally rejected or subject to an interference.
4. To such counsel's knowledge, there are no agreements with third parties
relating to the acquisition, licensing and/or transfer of intellectual property
rights that have been or are
8
anticipated to have a material impact on the Company's existing or future
business, including license agreements, joint venture agreements, marketing
and/or distribution agreements or other collaboration agreements.
5. To such counsel's knowledge, there are no facts or circumstances that,
if asserted in litigation, would be likely to render any of the intellectual
property rights reflected in the Company's Patents, Foreign Patents,
Applications or Foreign Applications invalid or unenforceable.
6. Such counsel knows of no claims of third parties to any ownership
interest or lien with respect to the Company's foreign patents listed on
Schedule II to be attached hereto which are all of the Company's foreign patents
(the "Foreign Patents"), or any of the Company's foreign patent applications
listed on Schedule II which are all of the Company's foreign patent applications
(the "Foreign Applications"). Information concerning the application number,
filing data and status of the Foreign Patents and Foreign Applications
encompassed by our representation of the Company are set forth on Schedule II.
To the best knowledge of such counsel, the Company owns as its sole property the
Foreign Patents and pending Foreign Applications. To the best knowledge of such
counsel, none of the Foreign Patents is subject to an opposition, national
invalidation proceeding or national court proceeding. To the best knowledge of
such counsel, none of the Foreign Applications has been appealed or finally
rejected.
7. Such counsel is not aware of any material defects of form in the
preparation or filing of the Company's Patents, Foreign Patents, Applications or
Foreign Applications. The Company has complied with all applicable examination
requirements of duty of candor and disclosure at the United States Patent &
Trademark Office and has complied with the applicable examination requirements
of duty of candor and disclosure, if any, for any of the Foreign Patents or
Foreign Applications. The Company's Patents, Foreign Patents, Applications and
Foreign Applications are being diligently pursued by the Company.
8. Such counsel knows of no reason why the Patents or Foreign Patents are
not valid as issued. Such counsel has no knowledge of any reason why any patent
to be issued as a result of any Application or Foreign Application would not be
valid or would not afford the Company useful patent protection with respect
thereto.
9. Such counsel is not aware of any pending or threatened notification,
action, suits, proceeding or claim by governmental authorities or others
challenging the validity, enforceability or scope of the Patents, Foreign
Patents, Applications, or Foreign Applications.
10. Such counsel is not aware of any pending or threatened action, suit
proceeding or claim by others that the Company is infringing or otherwise
violating any patent, trademarks or trade secrets or other intellectual property
of others, nor is such counsel aware of any rights of third parties to any of
the Company's inventions described in the Applications, Foreign Applications,
Patents or Foreign Patents which could reasonably be expected to materially
affect the ability of the Company to conduct its business as described in the
Registration Statement or the Prospectus.
9
11. Such counsel is not aware of any third parties that are infringing or
otherwise violating any of the Company's Patents or Foreign Patents.
In addition to the matters set forth above, such opinion shall also
include a statement that the Registration Statement and the Prospectus,
including the Intellectual Property Portion, fairly and accurately describe the
Company's rights with respect to the Patents, Foreign Patents, Applications,
Foreign Applications and other intellectual property of the Company, and that
nothing has come to the attention of such counsel which leads them to believe
that (i) the Registration Statement, at the time it became effective under the
Act (but after giving effect to any modifications incorporated therein pursuant
to Rule 430A under the Act) and as of the Closing Date or the Option Closing
Date, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Prospectus, or any
supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option Closing Date, as the case
may be, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading.
10
EXHIBIT D
Form of Opinion by Bozicevic, Field & Xxxxxxx, LLP, patent counsel to the
Company
11
Dear Ladies and Gentlemen:
We have acted as patent counsel for Genitope Corporation, a Delaware
corporation (the "Company"), in connection with the proposed offering of common
shares of the Company (the "Shares"), pursuant to the Underwriting Agreement by
and between the Company and X.X. Xxxxxxxxx + Co., LLC, Punk, Xxxxxx & Company,
L.P., Xxxxx Xxxxxx & Co., Inc. and the Stanford Group Company as representatives
of the underwriters (collectively the "Underwriters"). We have represented the
Company only with respect to opinions on third party patents owned by:
Genentech, Inc. and the City of Hope National Medical Center; British Technology
Group PLC; and Stratagene, as set forth in the Form S-1. We are rendering this
opinion pursuant only to the specific sections of the Underwriting Agreement
described here, and only with respect to these specific Patents, as referred to
on pages [10-12] and [55-56] of the Form S-1 Registration Statement at the time
it became effective under the Securities Act of 1933 (but after giving effect to
any modifications incorporated therein pursuant to Rule 430A under the Act) (the
"Form S-1"), and not to any other section of the Form S-1 or intellectual
property.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the various parties, and have examined and relied
upon the originals or copies of such records, documents, certificates, opinions,
memoranda and other instruments as in our judgment are necessary to enable us to
render the opinions expressed below, including the Form S-1, which S-1 has been
assigned SEC File Number 333-[ ], and the portions of the Form S-1 entitled
"Risk Factors - If we are sued for infringing intellectual property rights of
third parties it will be costly and time consuming, and an unfavorable outcome
in that litigation would have a material effect on our business"; and "Business
- Intellectual Property".
Where we render an opinion "to the best of our knowledge" or concerning an
item "known to us" or our opinion otherwise refers to our knowledge, it is based
solely upon (i) an inquiry of attorneys or registered patent agents (which
attorneys and patent agents are licensed solely in the United States) within
this firm who perform such services for the Company as defined above; and (ii)
such other investigation, if any, that we specifically set forth herein. With
regard to our opinion it is specifically understood that we do not represent the
Company regarding (1) Securities and Exchange Commission matters; (2) litigation
matters including but not limited to patent, trademark, and trade secret
litigation; (3) trademark matters; (4) trade secret matters; (5) licensing
matters; (6) non-U.S. patent matters; or (7) intellectual property agreements
such as those with officers, employees and consultants of the Company.
Accordingly, we offer no opinion regarding such matters and our opinion on
statements in the Form S-1 specifically excludes such matters. Our opinion is
limited to the Patents as defined above.
In rendering this opinion, we have assumed: the genuineness and
authenticity of all signatures on original documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all
documents submitted to us as copies; the accuracy,
12
completeness and authenticity of certificates of public officials; and the due
authorization, execution and delivery of all documents (except the due
authorization, execution and delivery by the Company of the Underwriting
Agreement).
We have not reviewed any confidentiality or assignment-of-invention
agreements of the Company. Thus, with regard to our opinion below, our opinion
specifically excludes representations to such confidentiality or
assignment-of-invention agreements and the content of such confidentiality or
assignment-of-invention agreements.
Our opinion is expressed only with respect to the federal laws of the
United States of America and the laws of the State of California.
On the basis of the foregoing and in reliance thereon, and with the
foregoing qualifications and to the best of our knowledge, we are of the opinion
that:
(i) The statements in the Form S-1 relating to the Patents as defined
above constitute an accurate summary of the matters referred to therein
and fairly present the information called for with respect to such
matters; and we have no reason to believe that at the date of this opinion
such statements 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;
(ii)As of the date of this letter, we do not represent the Company on any
matters involving litigation and we are not aware of any threatened
litigation against or/by the Company.
This letter is intended for the sole benefit of the Underwriters and
counsel to the Underwriters and is not to be made available to or relied upon by
any other person, firm or entity without our prior written consent.
Very truly yours,
Bozicevic, Field & Xxxxxxx LLP
Xxxxxx Xxxxxxxx, Ph.D. Xxxx Xxxxxxxxx, Esq.
13
EXHIBIT E
Form of Opinion by Xxxx, Xxxx, Xxxx & Freidenrich, patent counsel to the Company
14
XX Xxxxxxxxx + Co Punk, Xxxxxx & Company Xxxxx Xxxxxx & Co., Inc. Stanford Group Company
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000 Xxx Xxxx, XX 00000 00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxxxx, XX 00000
Re: Genitope Corporation
Dear Ladies and Gentlemen:
We have acted as patent counsel for Genitope Corporation, a Delaware
corporation (the "Company"), in connection with the proposed offering of common
shares of the Company (the "Shares"), pursuant to an Underwriting Agreement to
be entered into by the Company with X.X. Xxxxxxxxx + Co., LLC, Punk, Xxxxxx &
Company, L.P., Xxxxx Xxxxxx & Co., Inc. and the Stanford Group Company
(collectively the "Underwriters"). We have represented the Company only with
respect to an opinion on a third party patent owned by The Board of Trustees of
the Xxxxxx Xxxxxxxx ("Stanford") Junior University, as set forth in the Form
S-1. We are rendering this opinion pursuant only to the specific sections of the
Underwriting Agreement described here, and only with respect to these specific
Patents, as referred to on pages [10-12] and [55-56] of the Form S-1
Registration Statement at the time it became effective under the Securities Act
of 1933 (but after giving effect to any modifications incorporated therein
pursuant to Rule 430A under the Act) (the "Form S-1"), and not to any other
section of the Form S-1 or intellectual property.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the various parties, and have examined and relied
upon the originals or copies of such records, documents, certificates, opinions,
memoranda and other instruments as in our judgment are necessary to enable us to
render the opinions expressed below, including the Form S-1, which S-1 has been
assigned SEC File Number 333-[ ], and the portions of the Form S-1 entitled
"Risk Factors - If we are sued for infringing intellectual property rights of
third parties it will be costly and time consuming, and an unfavorable outcome
in that litigation would have a material effect on our business"; and "Business
- Intellectual Property".
Where we render an opinion "to the best of our knowledge" or concerning an
item "known to us" or our opinion otherwise refers to our knowledge, it is based
solely upon (i) an inquiry of attorneys or registered patent agents (which
attorneys and patent agents are licensed solely in the United States) within
this firm who perform such services for the Company as defined above; and (ii)
such other investigation, if any, that we specifically set forth herein. With
regard to our opinion it is specifically understood that we do not represent the
Company regarding (1) Securities and Exchange Commission matters; (2) litigation
matters including but not limited to patent, trademark, and trade secret
litigation; (3) trademark matters; (4) trade secret matters; (5) licensing
matters; (6) non-U.S. patent matters; or (7) intellectual property agreements
such as those with officers, employees and consultants of the Company.
Accordingly, we offer no opinion regarding such matters and our opinion on
statements in the Form S-1 specifically excludes such matters. Our opinion is
limited to the Patents as defined above.
15
In rendering this opinion, we have assumed: the genuineness and
authenticity of all signatures on original documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all
documents submitted to us as copies; the accuracy, completeness and authenticity
of certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and delivery
by the Company of the Underwriting Agreement).
We have not reviewed any confidentiality or assignment-of-invention
agreements of the Company. Thus, with regard to our opinion below, our opinion
specifically excludes representations to such confidentiality or
assignment-of-invention agreements and the content of such confidentiality or
assignment-of-invention agreements.
Our opinion is expressed only with respect to the federal laws of the
United States of America and the laws of the State of California.
On the basis of the foregoing and in reliance thereon, and with the
foregoing qualifications and to the best of our knowledge, we are of the opinion
that:
(i) The statements in the Form S-1 relating to the Patents as defined
above constitute an accurate summary of the matters referred to therein
and fairly present the information called for with respect to such
matters; and we have no reason to believe that at the date of this opinion
such statements 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;
(ii)As of the date of this letter, we do not represent the Company on any
matters involving litigation and we are not aware of any threatened
litigation against or/by the Company.
16
This letter is intended for the sole benefit of the Underwriters and
counsel to the Underwriters and is not to be made available to or relied upon by
any other person, firm or entity without our prior written consent.
Very truly yours,
XXXX XXXX XXXX & FREIDENRICH LLP
By: _________________________________
Xxxx X. Xxxxx, X.X., Ph.X.
XXX:kdl
17
