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GENENTECH, INC.
17,300,000 Shares of Common Stock
Underwriting Agreement
March , 2000
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Warburg Dillon Read LLC
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Roche Holdings, Inc., a Delaware corporation (the "Selling
Stockholder") and a stockholder of Genentech, Inc., a Delaware corporation (the
"Company"), proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 17,300,000 shares (the "Underwritten
Shares") of Common Stock, par value $0.02 per share, of the Company (the "Common
Stock"). In addition, for the sole purpose of covering over-allotments in
connection with the sale of the Underwritten Shares, the Selling Stockholder
proposes to issue and sell to the Underwriters, at the option of the
Underwriters, up to an additional 1,700,000 shares (the "Option Shares") of
Common Stock. The Underwritten Shares and the Option Shares are herein referred
to as the "Shares." The Selling Stockholder acknowledges that the Shares (other
than the Option Shares) are (i) those shares of Common Stock represented by
certificate 27 representing 4,502,758 shares (which shares were received on July
6, 1999 in exchange for the payment by us of $42.50 per share in cash) and (ii)
a total of 12,797,242 of those shares of Common Stock represented by
certificates __ and __ (of which 12,797,242 shares, 2,540,400 were received on
February 11, 1997 in exchange for the payment by us of $27.7750 per share in
cash, 8,000,000 were received on February 8, 1996 in exchange for the
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payment by us of $27.5241 per share in cash, 112,000 were received on January
24, 1997 in exchange for the payment by us of $27.1277 per share in cash, and
2,144,842 were received on January 24, 1997 in exchange for the payment by us of
$27.00 per share in cash). The Selling Stockholder further acknowledges that the
Option Shares, if issued and sold, are a total of 1,700,000 of those shares of
Common Stock represented by certificates __ and __ (of which 1,700,000 shares,
55,158 were received on January 24, 1997 in exchange for the payment by us of
$27.00 per share in cash, 767,000 were received on April 26, 1994 in exchange
for the payment by us of $25.0220 per share in cash, and 877,842 were received
on April 25, 1994 in exchange for the payment by us of $25.0165 per share in
cash).
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it became or shall become effective,
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement," and the
prospectus in the form first used to confirm sales of Shares is referred to in
this Agreement as the "Prospectus." If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the effective date of the Registration Statement
or the date of such preliminary prospectus or the Prospectus, as the case may
be, and any reference to "amend," "amendment" or "supplement" with respect to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference therein.
1. The Selling Stockholder agrees to sell the Underwritten
Shares to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Selling Stockholder at a purchase price per
share of $ (the "Purchase Price") the number of Underwritten Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto.
In addition, the Selling Stockholder agrees to sell the Option
Shares to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the repre-
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sentations and warranties herein contained, but subject to the conditions
hereinafter stated, shall have the option to purchase, severally and not
jointly, from the Selling Stockholder at the Purchase Price that portion of the
number of Option Shares as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Option Shares by a fraction, the numerator of which
is the maximum number of Underwritten Shares which such Underwriter is entitled
to purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Underwritten Shares
which all of the Underwriters are entitled to purchase hereunder, for the sole
purpose of covering over-allotments (if any) in the sale of Underwritten Shares
by the several Underwriters.
The Underwriters may exercise the option to purchase the
Option Shares at any time (but not more than once) on or before the thirtieth
day following the date of this Agreement, by written notice from the
Representatives to the Selling Stockholder. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being exercised and
the date and time when the Option Shares are to be delivered and paid for, which
may be the same date and time as the Closing Date (as hereinafter defined) but
shall not be earlier than the Closing Date nor later than the tenth full
Business Day (as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of Section 9
hereof). Any such notice shall be given at least two Business Days prior to the
date and time of delivery specified therein.
2. The Company and the Selling Stockholder understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Selling Stockholder
to the Representatives, in the case of the Underwritten Shares, on March , 2000,
or at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representatives and the Selling Stockholder may
agree upon in writing, or, in the case of the Option Shares, on the date and
time specified by the Representatives in the written notice of the Underwriters'
election to purchase such Option Shares. The time and date of such payment for
the Underwritten Shares is referred to herein as the "Closing Date," and the
time and date for such payment for the Option Shares, if other than the Closing
Date, are herein referred to as the "Additional Closing Date." As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or
the Additional Closing Date, as the case may be, shall be made against delivery
to the Representatives for the
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respective accounts of the several Underwriters of the Shares to be purchased on
such date registered in such names and in such denominations as the
Representatives shall request in writing not later than two full Business Days
prior to the Closing Date or the Additional Closing Date, as the case may be,
with any transfer taxes payable in connection with the transfer to the
Underwriters of the Shares duly paid by the Selling Stockholder. The
certificates for the Shares will be made available for inspection and packaging
by the Representatives at the office of X.X. Xxxxxx Securities Inc. set forth
above not later than 1:00 P.M., New York City time, on the Business Day prior to
the Closing Date or the Additional Closing Date, as the case may be.
4. (A) The Company represents and warrants to each Underwriter and the
Selling Stockholder that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that the foregoing representations and
warranties shall not apply to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; the Registration Statement and Prospectus
(as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
if applicable, at the Closing Date or Additional Closing Date, as the
case may be, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the foregoing representations and
warranties shall not apply to any statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and
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in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(d) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and changes in their consolidated
cash flows for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the
pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable,
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock (except for the exercise of stock
options or the issuance of shares pursuant to the Company's employee
stock plan) or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Change"), otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus, neither the Company nor any of
its subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company and
its subsidiaries, taken as a whole;
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(f) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect");
(g) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect; and all the outstanding shares of capital
stock of each subsidiary of the Company have been duly authorized and
validly issued, are fully-paid and non-assessable, and (except, in the
case of foreign subsidiaries, for directors' qualifying shares and
except as described in the Prospectus) are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Company has an authorized capitalization as set forth
in the Prospectus and such authorized capital stock conforms as to
legal matters to the description thereof set forth in the Prospectus,
and all of the outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and validly issued,
are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; and, except as described in or expressly
contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such subsidiary,
any such convertible or exchangeable securities or any such rights,
warrants or options;
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(j) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under its certificate of incorporation or
by-laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which would not, individually or in the aggregate, have a Material
Adverse Effect; the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated
herein and in the Prospectus will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the certificate of incorporation or the
by-laws of the Company or any of its subsidiaries or any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated by
this Agreement and the Prospectus, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(k) other than as set forth in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could,
individually or in the aggregate, have, or reasonably be expected to
have, a Material Adverse Effect, and, to the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(l) the Company and its subsidiaries have good title in fee
simple to all items of real property and good title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially interfere with the use made
or
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proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made of
such property and buildings by the Company or its subsidiaries;
(m) no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries, on the other hand, which is
required by the Securities Act to be described in the Registration
Statement or the Prospectus which is not so described;
(n) no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by reason
of the filing of the Registration Statement with the Commission or, to
the best knowledge of the Company, the sale of the Shares by the
Selling Stockholder pursuant hereto, except for rights which have been
waived;
(o) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Ernst & Young LLP ("Ernst & Young"), who have certified
certain financial statements of the Company, are independent public
accountants as required by the Securities Act;
(q) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except as
disclosed in the Registration Statement and the Prospectus, no tax
deficiency has been determined adversely to the Company or any
subsidiary which has had, nor does the Company have any knowledge of
any tax deficiency, which if determined adversely to the Company or any
subsidiary might have a Material Adverse Effect;
(r) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Common Stock;
(s) the statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which are believed by the Company to be reliable;
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(t) each of the Company and its subsidiaries owns, is licensed
to use or otherwise possesses adequate rights to use the patents,
patent rights, licenses, inventions, trademarks, service marks, trade
names, copyrights and know-how, including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems, processes or procedures (collectively, the "Intellectual
Property"), reasonably necessary to carry on the business conducted by
it, except to the extent that the failure to own, be licensed to use or
otherwise possess adequate rights to use such Intellectual Property
would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect; except as set forth in the Prospectus,
the Company has not received any notice of infringement of or conflict
with, and the Company has no knowledge of any infringement of or
conflict with, asserted rights of others with respect to its
Intellectual Property which could reasonably be expected to result in a
Material Adverse Effect; except as set forth in the Prospectus, the
discoveries, inventions, products or processes of the Company referred
to in the Registration Statement and the Prospectus do not, to the
knowledge of the Company, infringe or conflict with any right or patent
of any third party, or any discovery, invention, product or process
which is the subject of a patent application filed by any third party
which patent application has been published or is otherwise known to
the Company which could reasonably be expected to result in a Material
Adverse Effect; except as set forth in the Prospectus, the Company is
not obligated to pay a royalty, grant a license or provide other
consideration to any third party in connection with its patents, patent
rights, licenses, inventions, trademarks, service marks, trade names,
copyrights and know-how which could reasonably be expected to result in
a Material Adverse Effect; and no third party, including any academic
or governmental organization, possesses rights to the Intellectual
Property which, if exercised, could reasonably be expected to have a
Material Adverse Effect;
(u) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, the studies,
tests and preclinical and clinical trials conducted by or on behalf of
the Company that are described in the Registration Statement and the
Prospectus were and, if still pending, are being conducted in
accordance with experimental protocols, procedures and controls
pursuant to, where applicable, accepted professional scientific
standards, except where the failure could not reasonably be expected to
result in a Material Adverse Effect; the descriptions of the results of
such studies, tests and trials contained in the Registration Statement
and the Prospectus are accurate and complete in all material respects;
and the Company has not received any notices or correspondence from the
U.S. Food and Drug Administration (the "FDA") or any foreign, state or
local governmental body exercising comparable authority --- requiring
the termination, suspension or material modification of any studies,
tests or preclinical or clinical trials conducted by or on behalf of
the Company which termination, suspension or material modification
could reasonably be expected to have a Material Adverse Effect;
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(v) there are no existing or, to the knowledge of the Company,
threatened labor disputes with the employees of the Company which are
likely to have a Material Adverse Effect;
(w) the Company carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries;
(x) the Company (i) is in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its businesses and (iii) is in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and
(y) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of
the Company and its affiliates has been maintained in material
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended ("Code"); no
prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption; for each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency," as defined in Section 412 of the
Code, has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceed the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions.
(B) The Selling Stockholder hereby represents and warrants to
each of the Underwriters that:
(a) the Selling Stockholder has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware;
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(b) the Selling Stockholder has good and valid title to the
Shares to be sold by the Selling Stockholder hereunder, free and clear
of all mortgages, pledges, security interests, liens, claims,
encumbrances or equities, with full right and authority to deliver the
same hereunder; upon payment for the Shares to be sold by the Selling
Stockholder as provided herein, delivery of such Shares, as directed by
the Underwriter, to Cede & Co. ("Cede") or such other nominee as may be
designated by the Depository Trust Company ("DTC"), registration of
such Shares in the name of Cede or such other nominee and the crediting
of such Shares on the books of DTC to securities accounts of the
Underwriters, (A) DTC shall be a "protected purchaser" of such Shares
within the meaning of Section 8-303 of the Uniform Commercial Code as
in effect in the State of New York (the "UCC"), (B) under Section 8-501
of the UCC, the Underwriters will acquire a valid security entitlement
in respect of such Shares and (C) no action based on any "adverse
claim" (as defined in Section 8-102 of the UCC) (other than any adverse
claim arising through the Underwriters) to such Shares may be asserted
against the Underwriters with respect to such security entitlement (it
being understood that for the purpose of this representation and
warranty, the Selling Stockholder may assume that when such payment,
delivery and crediting occur, (i) such Shares will have been registered
in the name of Cede or another nominee designated by DTC, in each case
on the Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (ii) DTC will be registered
as a "clearing corporation" within the meaning of Section 8-102 of the
UCC, and (iii) appropriate entries to the accounts of the several
Underwriters on the records of DTC will have been made pursuant to the
UCC);
(c) the Selling Stockholder has not taken nor will it take,
directly or indirectly, any action which is designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock;
(d) the sale of the Shares by the Selling Stockholder pursuant
to this Agreement is not prompted by any material information
concerning the Company which is not set forth in the Registration
Statement or the Prospectus;
(e) each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, did
not contain an untrue statement of a material fact or omit to state a
material fact, in each case with respect to information relating to the
Selling Stockholder furnished to the Company in writing by or on behalf
of the Selling Stockholder expressly for use therein, required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
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(f) the Registration Statement and the Prospectus (as amended
or supplemented) do not and will not, as of the applicable effective
date of the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state any
material fact, in each case with respect to information relating to the
Selling Stockholder furnished to the Company by or on behalf of the
Selling Stockholder expressly for use therein, required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented, if applicable, at the
Closing Date or Additional Closing Date, as the case may be, will not
contain any untrue statement of a material fact or omit to state a
material fact, in each case relating to the Selling Stockholder,
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(g) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; and
(h) the sale of the Shares by the Selling Stockholder
hereunder, the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the property or assets of the Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Selling Stockholder, nor
will such action result in any violation of any applicable statute or
any applicable order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Stockholder or any
of its properties; no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the sale of the Shares or the
consummation by the Selling Stockholder of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained or made under the Securities Act or the Exchange Act
and as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters; the Selling Stockholder has full right, power and
authority to enter into this Agreement and to sell, assign, transfer
and deliver the Shares to be sold by it; and each agreement between the
Company and the Selling Stockholder referred to in the Prospectus has
been duly executed and delivered by the Selling Stockholder and
constitutes a valid and binding obligation of the Selling Stockholder
enforceable against the Selling Stockholder in accordance with its
terms.
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5. (A) The Company covenants and agrees with each of the several
Underwriters as follows:
(a) if the Registration Statement is not already effective, to
use its best efforts to cause the Registration Statement to become
effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; and
to furnish copies of the Prospectus to the Underwriters in New York
City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request;
(b) to deliver, at the expense of the Selling Stockholder, to
the Representatives six signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference
therein as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm
such advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has
been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for
that purpose,
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(vi) of the occurrence of any event, during the period mentioned in
paragraph (e) below, as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, and (vii) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Shares, or notification of any
such order thereof, and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Selling Stockholder if
delivery of the prospectus is required at any time prior to the
expiration of nine months after the Closing Date (and at the expense of
such Underwriters if delivery of the Prospectus is required nine months
or more after the Closing Date), to the Underwriters and to the dealers
(whose names and addresses the Representatives will furnish to the
Company) to which Shares may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or blue sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Shares; provided that the Company shall not be required to file
a general consent to service of process in any such jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
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(h) during the period of three years after the date of this
Agreement, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to holders of the
Shares, and copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange;
(i) for a period of 90 days after the date of the initial
public offering of the Shares, not to (i) directly or indirectly,
offer, pledge, announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of Common Stock or any
securities of the Company which are substantially similar to the Common
Stock, including but not limited to any securities convertible into or
exercisable or exchangeable for, or that represent the right to
receive, Common Stock or any such substantially similar securities or
(ii) enter into any swap, option, future, forward or other agreement
that transfers, in whole or in part, any of the economic consequences
of ownership of the Common Stock or any such substantially similar
securities, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise without the prior written consent of
X.X. Xxxxxx Securities Inc., other than (i) any options granted or
shares of Common Stock of the Company issued upon the exercise of
options granted or to be granted under the Company's employee stock
option plans existing on the date of the Prospectus, (ii) in connection
with the agreement described under "Relationship with Roche -- Roche's
Right to Maintain its Percentage Ownership Interest in Our Stock" in
the Prospectus and (iii) as consideration for any acquisition
(including, without limitation, by way of merger or consolidation) by
the Company or any of its Subsidiaries; and
(j) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated and subject to the
obligation of the Selling Stockholder under paragraph (b) of Section
5(B), to pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder.
(B) The Selling Stockholder covenants and agrees with the
several Underwriters as follows:
(a) for a period of 90 days after the date of the initial
public offering of the Shares, not to (i) directly or indirectly,
offer, pledge, announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of Common Stock or any
securities of the Company which are substantially similar to the Common
Stock, including but not limited to any securities convertible into or
exercisable or exchangeable for, or that represent the right to
re-
16
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ceive, Common Stock or any such substantially similar securities or
(ii) enter into any swap, future, forward or other agreement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock or any such substantially similar
securities, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iii) make any demand for or
exercise any right with respect to the registration of any shares of
Common Stock or any such substantially similar securities without the
prior written consent of X.X. Xxxxxx Securities Inc., other than the
sale of Shares to be sold by the Selling Stockholder hereunder; and
(b) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
registration, transfer, execution and delivery of the Shares, (ii)
except as provided in paragraph (j) of Section 5(A), incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus,
including in each case all exhibits, amendments and supplements thereto
prior to or during the period specified in paragraph (e) of Section
5(A), (iii) related to the filing with, and clearance of the offering
by, the National Association of Securities Dealers, Inc., (iv) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, any blue sky memoranda and the
furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (v) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors,
(vi) the cost of preparing stock certificates, (vii) the cost and
charges of the Company's transfer agent and registrar, (viii) costs and
expenses (including all filing fees) incurred in connection with the
registration or qualification of the Shares under the laws of such
jurisdictions as the Representatives may designate (including fees of
counsel for the Underwriters and its disbursements) and (ix) the fees
and expenses of counsel for the Company and the Selling Stockholder.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, are subject to the performance by the Company and the Selling Stockholder of
their respective obligations hereunder and to the following additional
conditions:
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no pro-
17
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ceedings for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5(A)(a) hereof; and all requests for
additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of the Company and the
Selling Stockholder contained herein are true and correct on and as of
the Closing Date or the Additional Closing Date, as the case may be, as
if made on the Closing Date or the Additional Closing Date, as the case
may be, and each of the Company and the Selling Stockholder shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or the
Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the
case may be, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading or (iii) any review or possible change that does
not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus, there shall not have been any change in the
capital stock (except for the exercise of stock options or the issuance
of shares pursuant to the Company's employee stock plan) or long-term
debt of the Company or its subsidiaries, or any Material Adverse
Change, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated
in the Prospectus; and neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, (1) a
certificate of the Chief Executive Officer and Chief Financial Officer
of the Company, satisfactory to the Representatives, to the effect set
forth in subsections (a) through (c) (with respect to the re-
18
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spective representations, warranties, agreements and conditions of the
Company) of this Section 6 and to the further effect that there has not
occurred any Material Adverse Change from that set forth or
contemplated in the Registration Statement and (2) a certificate from
the Selling Stockholder, satisfactory to the Representatives, to the
effect set forth in subsection (b) of this Section 6 (with respect to
the respective representations, warranties, agreements and conditions
of the Selling Stockholder);
(f) Xxxxx Xxxx & Xxxxxxxx, counsel for the Company and the
Selling Stockholder, shall have furnished to the Representatives their
written opinion, dated the Closing Date or the Additional Closing Date,
as the case may be, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Selling Stockholder has been duly
incorporated and each of the Company and the Selling
Stockholder is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company and the Selling
Stockholder;
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iv) the statements in the Prospectus under
"Description of Capital Stock," "Material U.S. Federal Tax
Considerations for Non-U.S. Holders of Common Stock" and
"Underwriting" and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal
matters or documents referred to therein, fairly summarize in
all material respects such matters or documents;
(v) such counsel shall state that no facts have come
to their attention to cause them to believe that (A) the
Registration Statement and the Prospectus and any supplement
or amendment thereto (other than any financial statements and
related schedules and other financial or statistical
information therein as to which no belief is expressed) do not
comply as to form in all material respects with the Securities
Act, (B) the Registration Statement and the prospectus
included therein (other than any financial statements and
related schedules and other financial or statistical
information therein as to which no belief is expressed) at its
effective date 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 contained therein
not misleading or (C) the Prospectus (except as stated), as of
its date and as of the Closing Date or the Additional
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Closing Date, as the case may be, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
contained therein, in the light of the circumstances under
which they were made, not misleading;
(vi) no consent, approval, authorization, order,
license, registration or qualification of or with any court or
government agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement
and the Prospectus, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act
and as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Shares
by the Underwriters;
(vii) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be
required to register as an "investment company" as such term
is defined in the Investment Company Act;
(viii) upon payment for the Shares to be sold by the
Selling Stockholder as provided herein, delivery of such
Shares, as directed by the Underwriters, to Cede or such other
nominee as may be designated by DTC, registration of such
Shares in the name of Cede or such other nominee and the
crediting of such Shares on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor
any such Underwriter has notice of any adverse claim (as such
phrase is defined in Section 8-105 of the UCC) to such
Shares), (A) DTC shall be a "protected purchaser" of such
Shares within the meaning of Section 8-303 of the UCC, (B)
under Section 8-501 of the UCC, the Underwriters will acquire
a valid security entitlement in respect of such Shares and (C)
no action based on any "adverse claim" (as defined in Section
8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlement (it
being understood that for the purpose of this opinion, such
counsel may assume that when such payment, delivery and
crediting occur, (x) such Shares will have been registered in
the name of Cede or another nominee designated by DTC, in each
case on the Company's share registry in accordance with its
certificate of incorporation, bylaws and applicable law, (y)
DTC will be registered as a "clearing corporation" within the
meaning of Section 8-102 of the UCC and (z) appropriate
entries to the accounts of the several Underwriters on the
records of DTC will have been made pursuant to the UCC);
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(ix) the sale of the Shares by the Selling
Stockholder hereunder, the compliance by the Selling
Stockholder with all of the provisions of this Agreement and
the consummation of the transactions contemplated herein will
not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument known to such counsel
to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property
or assets of the Selling Stockholder is subject, nor will such
action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Selling
Stockholder, nor will such action result in any violation of
any applicable statute or any applicable order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or any of its
properties; and
(x) no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the sale of the
Shares or the consummation by the Selling Stockholder of the
transactions contemplated by this Agreement, except such
consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained or made
under the Securities Act or the Exchange Act and as may be
required under state securities or blue sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of New York and the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and
to the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and the Selling
Stockholder, as applicable, and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and
the Selling Stockholder, as applicable. The opinion of such counsel for
the Company and the Selling Stockholder shall state that the opinion of
any such other counsel upon which they relied is in form satisfactory
to such counsel and, in such counsel's opinion, the Underwriters and
they are justified in relying thereon. With respect to the matters to
be covered in subparagraph (v) above, counsel may state their opinion
and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or
supplement thereto (other than the documents incorporated
21
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by reference therein) and review and discussion of the contents thereof
(including the documents incorporated by reference therein) but is without
independent check or verification except as specified.
The opinion of Xxxxx Xxxx & Xxxxxxxx described above shall be rendered
to the Underwriters at the request of the Company and the Selling Stockholder
and shall so state therein;
(g) Xxxxxxx X. Xxxxxxxxxx, Esq., General Counsel of the Company, shall
have furnished to the Representatives his written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect;
(ii) each of the Company's material subsidiaries has
been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified and in good standing would not have a Material
Adverse Effect; and all of the outstanding shares of capital
stock of each material subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except, in the case of foreign subsidiaries, for directors'
qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) the outstanding shares of capital stock of the
Company (including the Shares) have been duly authorized and
are validly issued, fully paid and non-assessable;
(iv) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the
Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries
is or may be a party or to which
22
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any property of the Company or its subsidiaries is or may be
the subject which, if determined adversely to the Company or
any of its subsidiaries, could, individually or in the
aggregate, have, or reasonably be expected to have, a Material
Adverse Effect, and, to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or filed as required;
(v) such counsel shall state that no facts have come
to his attention to cause him to believe that (A) the
Registration Statement and the Prospectus and any supplement
or amendment thereto (other than any financial statements and
related schedules and other financial or statistical
information therein as to which no belief is expressed) do not
comply as to form in all material respects with the Securities
Act, (B) the Registration Statement and the prospectus
included therein (other than any financial statements and
related schedules and other financial or statistical
information therein as to which no belief is expressed) at its
effective date 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 contained therein
not misleading or (C) the Prospectus (other than any financial
statements and other financial or statistical information
therein as to which no belief is expressed), as of its date
and as of the Closing Date or the Additional Closing Date, as
the case may be, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading;
(vi) neither the Company nor any of its subsidiaries
is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its certificate
of incorporation or by-laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations
and defaults which would not, individually or in the
aggregate, have a Material Adverse Effect;
(vii) the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Com-
23
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pany or any of its material subsidiaries is a party or by
which the Company or any of its material subsidiaries is bound
or to which any of the property or assets of the Company or
any of its material subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
certificate of incorporation or the by-laws of the Company or
any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company, its material subsidiaries or
any of their respective properties, except for such conflicts,
breaches and defaults which would not, individually or in the
aggregate, have a Material Adverse Effect;
(viii) such counsel shall state that no facts have
come to his attention to cause him to believe that (A) the
documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company
prior to the Closing Date or the Additional Closing Date, as
the case may be (other than any financial statements and
related schedules and other financial or statistical
information therein as to which no belief is expressed), when
they were filed with the Commission did not comply as to form
in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and
(B) any of such documents, when such documents were so filed
(other than any financial statements and related schedules and
other financial or statistical information therein as to which
no belief is expressed), contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(ix) each of the Company and its material
subsidiaries owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as
the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, and neither
the Company nor any such subsidiary has received any actual
notice of any proceeding relating to revocation or
modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus;
and each of the Company and its subsidiaries is in compliance
with all laws and regulations relating to the conduct of its
business as conducted as of the date of the Prospectus where
the failure to so comply would have a Material Adverse Effect;
24
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(x) the Company and its material subsidiaries have
good title in fee simple to all real property and good title
to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as
are described or referred to in the Prospectus or such as do
not interfere with the use made and proposed to be made of
such property by the Company and such subsidiaries; and any
real property and buildings held under lease by the Company
and its material subsidiaries are held by them under valid,
existing and enforceable leases with such exceptions as are
not material and do not interfere with the use made or
proposed to be made of such property and buildings by the
Company or such subsidiaries;
(xi) each of the Company and its subsidiaries is in
compliance with all Environmental Laws, except, in each case,
where noncompliance, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect;
there are no legal or governmental proceedings pending or, to
the knowledge of such counsel, threatened against or affecting
the Company or any of its subsidiaries under any Environmental
Law which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect;
(xii) each of the Company and its subsidiaries owns,
possesses or has adequate rights to use the Intellectual
Property reasonably necessary to carry on the business
conducted by it as of the date hereof except to the extent
that the failure to own, possess or have adequate rights to
use such Intellectual Property would not, individually or in
the aggregate, have a Material Adverse Effect;
(xiii) such counsel is of the opinion that the
statements in the Registration Statement and the Prospectus
included therein at the time the Registration Statement became
effective set forth under (A) "Risk Factors -- Protecting our
Proprietary Rights is Difficult and Costly " and "Business --
Proprietary Technology -- Patents and Trade Secrets," insofar
as such statements concern patents, patent applications and
patent rights, and (B) "Risk Factors -- Our Products Are
Subject to Governmental Regulations and Approvals," "Business
-- Products," " -- Products in Development," " -- Competition"
and " -- Government Regulation," insofar as such statements
concern the Federal Food, Drug and Cosmetic Act, the Public
Health Services Act and the Food and Drug Administration
Modernization Act of 1997 and the regulations promulgated
thereunder and any similar foreign statutes and regulations,
in each case, did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that such statements in the captions set forth
above in the Prospectus, as amended or supplemented, if
applicable, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in or-
25
-25-
der to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xiv) other than as set forth or contemplated in the
Prospectus, to the knowledge of such counsel, the Company has
not received any notice of infringement of or conflict with,
and such counsel has no knowledge of any infringement of or
conflict with, asserted rights of others with respect to the
Company's Intellectual Property which could reasonably be
expected to result in a Material Adverse Effect;
(xv) other than as set forth or contemplated in the
Prospectus, the discoveries, inventions, products or processes
of the Company referred to in the Registration Statement and
the Prospectus do not, to the knowledge of such counsel,
infringe or conflict with any rights of any third party, or
any discovery, invention, product or process which is the
subject of a patent application filed by any third party which
patent application has not been published or is otherwise
known to the Company except to the extent that any such
infringement, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect;
(xvi) other than as set forth or contemplated in the
Prospectus, no third party, including any academic or
governmental organization, possesses rights to the Company's
patents, patent applications or patent rights which, if
exercised, could reasonably be expected to have a Material
Adverse Effect; and
(xvii) to the knowledge of such counsel, the Company
has not received any notices or correspondence from the FDA or
any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension or
material modification of any studies, tests or preclinical or
clinical trials conducted by or on behalf of the Company which
termination, suspension or material modification could
reasonably be expected to have a Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of California and the General Corporation
Law of the State of Delaware, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. The
26
-26-
opinion of such counsel for the Company shall state that the opinion of
any such other counsel upon which such counsel relied is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and such counsel are justified in relying thereon. With
respect to the matters to be covered in subparagraph (iv) above,
counsel may state his opinion and belief is based upon his
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and
discussion of the contents thereof but is without independent check or
verification except as specified.
The opinion of the General Counsel of the Company described
above shall be rendered to the Underwriters at the request of the
Company and shall so state therein;
(h) on the date hereof and the effective date of the most
recently filed post-effective amendment filed on or subsequent to the
date hereof to the Registration Statement and also on the Closing Date
or Additional Closing Date, as the case may be, Ernst & Young shall
have furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion
of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect
to the Registration Statement, the Prospectus and other related matters
as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(j) on or prior to the Closing Date or Additional Closing
Date, as the case may be, the Company and the Selling Stockholder shall
have furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request; and
(k) the "lock-up" agreements, each substantially in the form
of Exhibit A hereto, among you and the directors and management
executive committee members of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date or Additional Closing Date,
as the case may be.
7. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such Underwriter in
the distribution of the
27
-27-
Shares and each person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or
affiliate of such Underwriter which assists such Underwriter in the distribution
of the Shares) from whom the persons asserting any such losses, claims, damages
or liabilities purchased Shares, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) The Selling Stockholder agrees to indemnify and hold
harmless each Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Shares and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the Company, its
directors, its officers who sign the Registration Statement and each person who
controls the Company within the meaning of either such Section, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to the
Selling Stockholder furnished in writing by or on behalf of the Selling
Stockholder expressly for use in the Registration Statement or the Prospectus or
in any preliminary prospectus; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or affiliate of such Underwriter which assists such
Underwriter in the distribution of the Shares)
28
-28-
from whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
and the Selling Stockholder to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to the preceding
paragraphs of this Section 7, such person (the "Indemnified Person") shall
promptly notify the person or persons against whom such indemnity may be sought
(each an "Indemnifying Person") in writing, and such Indemnifying Persons, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person and not the Indemnifying Persons unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both an Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that no
Indemnifying Person shall, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Shares and such control persons of Underwriters shall be designated in
writing by X.X. Xxxxxx Securities Inc. and any such separate firm for the
Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company shall be designated in writ-
29
-29-
ing by the Company and any such separate firm for the Selling Stockholder shall
be designated in writing by the Selling Stockholder. No Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, each Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, such Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 90 days
after receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in paragraphs (a) through
(c) of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder on the one hand and
the Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder on the one hand and the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Selling Stockholder and the
total underwriting discounts received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Selling
Stock-
30
-30-
holder by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purposes) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Stockholder set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company or the Selling Stockholder and (iii)
acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement
(or the obligations of the several Underwriters with respect to the Option
Shares) may be terminated in the absolute discretion of the Representatives, by
notice given to the Company and the Selling Stockholder, if after the execution
and delivery of this Agreement and prior to the Closing Date (or, in the case of
the Option Shares, prior to the Additional Closing Date) (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Xxxxxxx
00
-00-
Xxxxx xx Xxxxx, (xx) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the reasonable
judgment of the Representatives, is material and adverse and which, in the
reasonable judgment of the Representatives, makes it impracticable to market the
Shares being delivered at the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Selling Stockholder for the purchase of such Shares are not made within 36 hours
after such default, this Agreement (or the obligations of the several
Underwriters to purchase the Option Shares, as the case may be) shall terminate
without liability on the part of any non-defaulting Underwriter or the Selling
Stockholder. In any such case either the Representatives or the Selling
Stockholder shall have the right to postpone the Closing Date (or, in the case
of the Option Shares, the Additional Closing Date), but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
32
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10. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company or
the Selling Stockholder to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or the
Selling Stockholder shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company and the Selling Stockholder agree to reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of its counsel) reasonably incurred by the Underwriter in connection
with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Stockholder and the Underwriters, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by
the Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: 212-648-5705), Attention: Syndicate Department, copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:
212-269-5420), Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall
be given to it at its office, 0 XXX Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(telefax: 000-000-0000), Attention: Xxxxxxx X. Xxxxxxxxxx, Esq., Senior Vice
President, General Counsel and Secretary. Notices to the Selling Stockholder
shall be given to it c/o Xxxxxxxx-Xx Xxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000 (telefax: 973-235-3500), Attention: Law Department, Xxxxxx
Xxxx, Esq. Copies of notices to any of the Company or the Selling Stockholder
should be given to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: 212-450-5527), Attention: Xxxxxxx X. Xxxxxxx, Esq.
13. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
33
If the foregoing is in accordance with your understanding,
please sign and return six counterparts hereof.
Very truly yours,
GENENTECH, INC.
By:
------------------------
Name:
Title:
ROCHE HOLDINGS, INC.
By:
------------------------
Name:
Title:
34
Accepted: March , 2000
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
WARBURG DILLON READ LLC
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
XXXXXX BROTHERS INC.
Acting severally on behalf of themselves and the several Underwriters
listed in Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By:
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
35
SCHEDULE I
Number of
Underwritten
Shares To Be
Underwriter Purchased
----------- ---------
X.X. Xxxxxx Securities Inc....................................................................
Xxxxxxx, Xxxxx & Co...........................................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..................................................................
Warburg Dillon Read LLC.......................................................................
FleetBoston Xxxxxxxxx Xxxxxxxx Inc............................................................
Xxxxxx Brothers Inc...........................................................................
----------
Total....................................................................... 17,300,000
==========
36
EXHIBIT A
[Form of Lock-Up Agreement]
