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Exhibit 1.1
Dendreon Corporation
[.] Shares/1/
Common Stock
FORM OF UNDERWRITING AGREEMENT
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[.], 2000
Prudential Securities Incorporated
SG Cowen Securities Corporation
Pacific Growth Equities, Inc.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Ladies and Gentlemen:
Dendreon Corporation, a Delaware corporation (the "Company"), hereby
confirms its agreement with the several underwriters named in Schedule I hereto
(the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the several Underwriters an aggregate of
[.] shares (the "Firm Securities") of the Company's Common Stock, par value
$.001 per share ("Common Stock"). The Company also proposes to issue and sell
to the several Underwriters not more than [.] additional shares of Common Stock
if requested by the Representatives as provided in Section 3 of this Agreement.
Any and all shares of Common Stock to be purchased by the Underwriters pursuant
to such option are referred
_________________
/1/ Plus an option to purchase from Dendreon Corporation up to [.] additional
shares to cover over-allotments.
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to herein as the "Option Securities," and the Firm Securities and any Option
Securities are collectively referred to herein as the "Securities."
As part of the offering contemplated by this Agreement, the Representatives
have agreed to reserve out of the Firm Securities purchased by them up to
150,000 shares (the "Directed Shares") for sale to the Company's directors,
officers, employees and other parties associated with the Company (each
individually a "Participant" and collectively the "Participants") under the
terms of the friends and family directed share program (the "Directed Share
Program"). Shares to be sold pursuant to the Directed Share Program shall be
sold pursuant to this Agreement at the public offering price. Any Directed
Share not confirmed for purchase by a Participant, under the Directed Share
Program procedures, will be offered to the public by the Representatives as set
forth in the Prospectus (as such term is hereinafter defined).
Concurrently with the sale of the Firm Securities to the Underwriters as
contemplated by this Agreement, the Company will effect the sale to Kirin
Brewery Co., Ltd., a corporation organized and existing under the laws of Japan
("Kirin") of $5.0 million in shares of Common Stock (the "Kirin Shares") in a
private placement at a price per share equal to the initial public offering
price of the Firm Securities, pursuant to the terms of a stock purchase
agreement between the Company and Kirin (the "Kirin Private Placement
Agreement").
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-31920) with
respect to the Securities, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement has been so filed. After the
execution of this Agreement, the Company will file with the Commission either:
(i) if such registration statement, as it has been amended, has been declared by
the Commission to be effective under the Act, either: (A) if the Company relies
on Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the
Securities, that shall identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such information as is required or
permitted by Rules 434, 430A and 424(b) under the Act, or (B) if the Company
does not rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under
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the Act, and in the case of either clause (i)(A) or (i)(B) of this sentence as
have been provided to and approved by the Representatives prior to the execution
of this Agreement, or (ii) if such registration statement, as it has been
amended, has not been declared by the Commission to be effective under the Act,
an amendment to such registration statement, including a form of prospectus, a
copy of which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company may also
file a related registration statement with the Commission pursuant to Rule
462(b) under the Act for the purpose of registering certain additional
Securities, which registration shall be effective upon filing with the
Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with any such registration statement or any
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto at the time it
was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to
Rule 424(b)(7) under the Act, together with the Preliminary
Prospectus identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule
424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b)
under the Act, the prospectus included in the Registration
Statement;
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and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
use of any Preliminary Prospectus. When any Preliminary Prospectus was filed
with the Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission promulgated thereunder and (ii) did not or will
not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, not misleading. When
the Prospectus or any Term Sheet that is a part thereof or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), and on the Firm Closing Date and any Option Closing Date
(both as hereinafter defined), the Prospectus, as amended or supplemented at any
such time, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission promulgated thereunder, and (ii) did not or will not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing provisions of this
paragraph (b) do not apply to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective, (i) the Company
has filed a Rule 462(b) Registration Statement in compliance with and that is
effective upon filing pursuant to Rule 462(b) and has received confirmation of
its receipt and (ii) the
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Company has given irrevocable instructions for transmission of the applicable
filing fee in connection with the filing of the Rule 462(b) Registration
Statement in compliance with Rule 111 promulgated under the Act, or the
Commission has received payment of such filing fee.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
qualified to transact business as a foreign corporation and is in good standing
under the laws of all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified could reasonably be expected to result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company (a "Material
Adverse Change"). The Company has no subsidiaries and does not control,
directly or indirectly, any corporation, partnership, joint venture, association
or other business organization.
(e) The Company has full corporate power to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus; and the Company has full corporate power to enter
into this Agreement and to carry out all the terms and provisions hereof to be
carried out by it.
(f) The Company's authorized, issued and outstanding capitalization
as of March 31, 2000 is as set forth under the caption "Capitalization" in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus. All of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. None of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any person.
(g) The Firm Securities and the Option Securities have been duly
authorized and at the Firm Closing Date or the Option Closing Date (as the case
may be), after payment therefor in accordance herewith, will be validly issued,
fully paid and nonassessable. No holders of outstanding shares of capital stock
of the Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities which have not been waived, and no holder of
securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
Agreement.
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(h) The Kirin Shares have been duly authorized and at the Firm
Closing Date, after payment therefor in accordance with the Kirin Private
Placement Agreement, will be validly issued, fully paid and nonassessable.
(i) The capital stock of the Company conforms to the description
thereof contained in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus.
(j) Except as disclosed in the Prospectus, and except for stock
options granted and Common Stock purchased pursuant to the equity incentive
plans described in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), there are no outstanding: (A)
securities or obligations of the Company convertible into or exchangeable for
any capital stock of the Company, (B) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any such convertible
or exchangeable securities or obligations, or (C) obligations of the Company to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(k) The financial statements and schedules of the Company included in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position of the Company and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Prospectus Summary -- Summary Financial Information,"
"Capitalization" and "Selected Financial Data" in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus (or such Preliminary Prospectus),
the information included therein.
(l) Ernst & Young LLP, who have audited certain financial statements
of the Company and delivered their report with respect to the financial
statements and schedules included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are independent public accountants as required by the
Act and the applicable rules and regulations thereunder.
(m) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and
delivered
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by the Company, and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by applicable laws and
except as the enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors
generally, or by general equitable principles.
(n) No legal or governmental proceedings are pending to which the
Company is a party or to which the property of the Company is subject that are
required to be described in the Registration Statement or the Prospectus and are
not described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), and to the Company's knowledge no such
proceedings have been threatened against the Company or with respect to any of
its assets, technologies or properties; and no contract or other document is
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not described
therein (or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or filed as required.
(o) The Company is not (i) in violation of any provision of its
charter documents or by-laws, as the case may be, which violation could
reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Change or (ii) in violation of any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Company or any of its properties, assets or
operations, the violation of which could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Change.
(p) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated, do not and will not (i) require the
consent, approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may be
required under state securities or blue sky laws and, if the registration
statement filed with respect to the Securities (as amended) is not effective
under the Act as of the time of execution hereof, such as may be required (and
shall be obtained as provided in this Agreement) under the Act or (ii) conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under (whether with or without the giving of notice or
passage of time or both) (A) any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company, which breach, violation or default, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Change or (B) any material
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indenture, mortgage, deed of trust, or lease or other material agreement or
instrument to which the Company is a party or by which the Company or any of its
properties are bound, or the charter documents or by-laws of the Company.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus, the Company has not
sustained any material loss or interference with its businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding
and there has not been any Material Adverse Change, or any development involving
a prospective Material Adverse Change.
(r) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities, or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(s) The Company has not distributed, and, prior to the later of (i)
the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute, any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) except for the
Kirin Private Placement Agreement, the Company has not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) the Company has not
purchased any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock; and (3)
there has not been any material change in the capital stock, short-term debt or
long-term debt of the Company, except in each case as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
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(u) Except as specifically described in or specifically contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), including the Transamerica agreements filed as exhibits
10.12, 10.13 and 10.14 to the Registration Statement, the Company has good and
marketable title in fee simple to all items of real property and marketable
title to all personal property owned by it, free and clear of any security
interests, liens, encumbrances, equities, claims and other defects, except such
as do not materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by the
Company, and any real property and buildings held under lease by the Company are
held under valid, subsisting 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.
(v) No labor dispute with the employees of the Company exists or is
threatened or imminent that could result in a Material Adverse Change.
(w) The Company owns or is licensed to use all patents, patent
applications, inventions, licenses, copyrights, trademarks, trade names,
applications for registration of trademarks, service marks, service mark
applications, know-how, manufacturing processes, formulae, trade secrets,
licenses and proprietary or other confidential information ("Proprietary
Rights") currently employed by it in connection with its business and does not
have any knowledge of, and the Company has not given or received any notice of,
infringement of or conflict with associated rights of any third party with
respect to any Proprietary Rights or any license therefor which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). The description of the Proprietary Rights
is correct and fairly and correctly describes the Company's rights with respect
thereto. No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights other than those
proceedings in the ordinary course of business in the United States Patent and
Trademark Office (the "PTO") or other equivalent foreign patent or trademark
agency relating to the prosecution by the Company of the Company's patent and
trademark applications. The Company is not subject to any judgment, order,
writ, injunction or decree of any court or any federal, state, local, foreign or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, or has entered into or
is a party to any contract which restricts or impairs the use of any such
Proprietary Rights in a way which affects, in any material respect, the ability
of the Company to carry out its business. No Proprietary Rights used
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by the Company, and no services or products sold by the Company, conflict with
or infringe upon any Proprietary Rights available to any third party. The
Company has not entered into any consent, indemnification, forbearance to sue or
settlement agreement with respect to Proprietary Rights. No claims have been
asserted by any person with respect to the validity of the Company's ownership
or right to use the Proprietary Rights and, to the best knowledge of the
Company, there is no reasonable basis for any such claim to be successful. The
Proprietary Rights are valid and enforceable and no registration relating
thereto has lapsed, expired or been abandoned or cancelled or is the subject of
cancellation or other adversarial proceedings, and all applications therefore
are pending and are in good standing. The Company has complied with its
contractual obligations relating to the protection of the Proprietary Rights
used pursuant to licenses. No person is infringing on or violating the
Proprietary Rights owned or used by the Company.
(x) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the business in which it is engaged; the Company has not been
refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not result in a Material Adverse Change. The officers and directors of
the Company are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
for officers and directors liability insurance of a public company and as would
cover claims which could be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will not be able to
renew its existing directors and officers liability insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to cover its officers and directors.
(y) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, and the Company has not received
any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Change.
(z) The Company will conduct its operations in a manner that will not
subject it to registration as an investment company under the Investment Company
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Act of 1940, as amended (the "Investment Company Act"), and the transactions
contemplated by this Agreement will not cause the Company to become an
investment company subject to registration under the Investment Company Act.
(aa) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not result in a
Material Adverse Change) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(bb) The Company is not in violation of any federal or state law
or regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials, and the Company has
received all permits, licenses or other approvals required of it under
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct its business, and the Company is in compliance
with all terms and conditions of any such permit, license or approval, except
for any such violation of law or regulation, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not, singly or in
the aggregate, result in a Material Adverse Change.
(cc) The statistical and market-related data included in the
Registration Statement and the Prospectus are derived from sources which the
Company reasonably and in good faith believes to be accurate, reasonable and
reliable; such data agrees in all material respects with the sources from which
they were derived, and to the Company's knowledge, such data reasonably
describes the markets or industries in which the Company conducts or proposes to
conduct its business.
(dd) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(ee) The Company does not own any shares of stock or any other
equity securities of any corporation or have any equity interest in any firm,
partnership, association or other entity, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The
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Company is not, and at the Firm Closing Date, or at the Option Closing Date, as
applicable, will not be, engaged in any discussions or a party to any agreement
or understanding, written or oral, regarding the acquisition of an interest in
any corporation, firm, partnership, joint venture, association or other entity
where such discussions, agreements or understandings would require amendment to
the Registration Statement pursuant to applicable securities laws.
(ff) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that: (1) transactions are
executed in accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(gg) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company is a party or by which the Company or its properties is bound or may be
affected, which default could reasonably be expected to result in a Material
Adverse Change.
(hh) The agreements between the Company and Kirin filed as
exhibits 10.15, 10.16, 10.17, 10.18 to the Registration Statement and the Kirin
Private Placement Agreement have each been duly authorized, executed and
delivered by the Company, are valid and binding agreements of the Company, and
are currently in full force and effect in accordance with their respective
terms. The Company has not received any communication (whether written or oral)
relating to the termination or threatened termination or modification or
threatened modification of any material consulting, licensing, marketing,
research and development, or cooperative agreement or any similar material
agreement, including, without limitation, the agreements listed under the
section of the Prospectus entitled, "Business-Collaborations."
(ii) All offers and sales of capital stock of the Company prior
to the date hereof were at all relevant times duly registered or exempt from the
registration requirements of the Act and were duly registered or subject to an
available exemption from the registration requirements of the applicable state
securities or Blue Sky laws.
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(jj) Neither the Company nor any other person associated with or
acting on behalf of the Company, including, without limitation, any director,
officer, agent or employee of the Company, has offered or caused the
Underwriters to offer any of the Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company or (ii) a trade journalist or publication
to write or publish favorable information about the Company or its products.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $[.] per share, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I hereto. One or
more certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom (Illinois), 333 West Wacker Drive, Chicago, Illinois
60606-1285, at 9:30 A.M., Chicago time, on [.], 2000, or at such other place,
time or date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing Date".
The Company will make such certificate or certificates for the Firm Securities
available for checking and packaging by the Representatives at the offices in
New York, New York of the Company's transfer agent or registrar or of Prudential
Securities Incorporated at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities
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set forth above in paragraph (a) of this Section 3. The option granted hereby
may be exercised as to all or any part of the Option Securities from time to
time within 30 days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the New York Stock Exchange is open for trading). The Underwriters shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such option. The Representatives may from time to time exercise the
option granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate number of Option Securities
as to which the several Underwriters are then exercising the option and the date
and time for delivery of and payment for such Option Securities. Any such date
of delivery shall be determined by the Representatives but shall not be earlier
than two business days or later than five business days after such exercise of
the option and, in any event, shall not be earlier than the Firm Closing Date.
The time and date set forth in such notice, or such other time on such other
date as the Representatives and Company may agree upon or as the Representatives
may determine pursuant to Section 9 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Company shall become obligated to sell to each of the
several Underwriters, and, subject to the terms and conditions herein set forth,
each of the Underwriters (severally and not jointly) shall become obligated to
purchase from the Company the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3, except that reference therein to
the Firm Securities and the Firm Closing Date shall be deemed, for purposes of
this paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriters of the purchase price for any Shares does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriters wire funds to the Company prior to the
completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
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practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the Wired Funds are
not returned by the Company to the Underwriters on the same day the Wired Funds
were received by the Company, the Company agrees to pay to the Underwriters in
respect of each day the Wired Funds are not returned by it, in same-day funds,
interest on the amount of such Wired Funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required
to be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus,
Term Sheet or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives previously have been advised
and furnished with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representatives shall not have given their
consent. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Representatives or counsel
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for the Underwriters, any amendments to the Registration Statement or amendments
or supplements to the Prospectus that may be necessary or advisable upon
recommendation of Underwriters' counsel in connection with the distribution of
the Securities by the several Underwriters, and will use its best efforts to
cause any such amendment to the Registration Statement to be declared effective
by the Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or declared
effective or the Prospectus or any amendment or supplement thereto has been
filed and will provide evidence satisfactory to the Representatives of each such
filing or effectiveness.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose, or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate, when and as requested by the
Representatives, in the qualification of the Securities for offering and sale
under the securities or blue sky laws of such jurisdictions as the
Representatives may designate and will continue such qualifications in effect
for as long as may be necessary to complete the distribution of the Securities;
provided, however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction where it is not otherwise qualified or
subject to jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act,
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other
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reason it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the rules or regulations of the Commission thereunder,
the Company will promptly notify the Representatives thereof and, subject to
Section 5(a) hereof, will prepare and file with the Commission, at the Company's
expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or effects
such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto), and (iii) so long as
a prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representatives may reasonably request;
without limiting the application of clause (iii) of this sentence, the Company,
not later than (A) 6:00 P.M., New York City time, on the date of determination
of the public offering price, if such determination occurred at or prior to
10:00 A.M., New York City time, on such date, or (B) 2:00 P.M., New York City
time, on the business day following the date of determination of the public
offering price, if such determination occurred after 10:00 A.M., New York City
time, on such date, will deliver to the Underwriters, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the Firm Closing Date.
(f) As soon as practicable, the Company will make generally available
to its stockholders and to the Representatives an earnings statement of the
Company that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant
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of any option to purchase or other sale or disposition) of any shares of Common
Stock or any securities convertible into, or exchangeable or exercisable for
shares of Common Stock for a period of 180 days after the date hereof, except
(i) pursuant to this Agreement, (ii) the Kirin Shares, (iii) issuances pursuant
to the exercise of warrants and stock options outstanding on the date hereof and
(iv) the grant of stock options to employees, consultants and directors and the
shares issuable upon exercise of such stock options.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities, or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in Section 7(h)
hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Stock has been
or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after notice from you advising the Company to the
effect set forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement,
reasonably satisfactory to you, responding to or commenting on such rumor,
publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111
promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the
date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included for
quotation on the Nasdaq National Market prior to the Firm Closing Date. The
Company will use its best efforts to ensure that the Securities remain included
for quotation on the Nasdaq National Market following the Firm Closing Date.
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(n) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of 90 days
following the date of the Prospectus. Prudential Securities Incorporated will
notify the Company as to which Directed Shares will need to be restricted under
NASD rules. The Company will direct the transfer agent to place stop transfer
restrictions on such securities for such period of time.
6. Expenses.
(a) The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to: (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the NASD relating
to the Securities, (vii) any quotation of the Securities on the Nasdaq National
Market, (viii) any meetings with prospective investors in the Securities (other
than as shall have been specifically approved by the Representatives to be paid
for by the Underwriters), (ix) advertising relating to the offering of the
Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters) and (x) the fees and
disbursements of counsel for the Underwriters in connection with matters
relating to the Directed Share Program and stamp duties, similar taxes or duties
or other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to
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Section 11 hereof or because of any failure, refusal or inability on the part of
the Company to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all reasonable out-of-pocket expenses (including reasonable counsel
fees and disbursements) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities. The Company shall not in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement, shall have been declared effective not later than the
earlier of: (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the Securities or to
the Registration Statement, as the case may be, containing information regarding
the initial public offering price of the Securities has been filed with the
Commission, and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to in writing by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
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(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Cooley Godward LLP, counsel for the Company, to the effect
that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of Delaware and is
duly qualified to transact business as a foreign corporation and is in
good standing under the laws of each other jurisdiction in the United
States where the ownership or leasing of its properties or the conduct
of its business requires such qualification, except where the failure
to be so qualified or be in good standing would not result in a
Material Adverse Change.
(ii) The Company has the corporate power and authority to own or
lease its properties and conduct its business as described in the
Prospectus. The Company has the corporate power and authority to enter
into and perform its obligations under this Agreement.
(iii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under the caption
"Capitalization" as of the dates stated therein and, after giving
effect to the offering will be as set forth under the column "Pro
Forma As Adjusted" under the caption "Capitalization" (except for
subsequent issuances, if any pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of options referred to in the
Prospectus or pursuant to the Kirin Private Placement Agreement). All
of the issued shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. To
such counsel's knowledge, none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. The shares
of the issued and outstanding Series D Preferred Stock and Series E
Preferred Stock of the Company have been issued in compliance with all
federal and state securities laws. No preemptive rights of, or rights
of refusal in favor of, stockholders exist with respect to the Common
Stock, or the issue and sale thereof, pursuant to the certificate of
incorporation or bylaws of the Company or applicable statute, and to
such counsel's knowledge there are no contractual or statutory
preemptive rights that have not been waived, rights of first refusal
or rights of co-sale which exist with respect to the issue and sale of
the
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Common Stock. Except as described in the Prospectus, to such counsel's
knowledge, there are no outstanding options, warrants or other rights
to purchase, agreements to issue or other rights to convert any
obligations into shares of capital stock of the Company.
(iv) The Firm Securities and the Option Securities have been
duly authorized and at the Firm Closing Date or Option Closing Date
(as the case may be), after payment thereof in accordance herewith,
will be validly issued, fully paid and nonassessable. The Kirin Shares
have been duly authorized and after payment therefor in accordance
with the Kirin Private Placement Agreement will be validly issued,
fully paid and nonassessable. No holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or
other rights to subscribe for any of the Securities or the Kirin
Shares pursuant to the Company's certificate of incorporation or
bylaws, applicable statute or, to the knowledge of such counsel, any
agreement or arrangement applicable to the Company, and no holder of
securities of the Company has any right pursuant to the Company's
certificate of incorporation or bylaws, applicable statute or any such
agreement or arrangement which has not been fully exercised or waived
to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated
by this Agreement.
(v) The statements set forth (A) under the headings "Risk
Factors-Risks Relating to This Offering-Future sales of our common or
preferred stock may lower the market price of our common stock,"
"Business-Collaborations," "Management-Board Composition,"
"Management-Employment Contracts, Termination of Employment and
Change-in-Control Arrangements," "Management-Employee Benefit Plans,"
"Certain Relationships and Related Transactions," "Description of
Capital Stock" and "Shares Eligible for Future Sale" in the
Prospectus, (B) in Item 14 of Part II of the Registration Statement
and (C) in subparagraphs (5) and (9) of paragraph (a) of Item 15 of
Part II of the Registration Statement, insofar as such statements
constitute matters of law, summaries of legal matters, the Company's
charter and by-laws, or legal proceedings or legal conclusions, have
been reviewed by us and are correct in all material respects. Accurate
copies of all contracts and other documents required to be filed as
exhibits to, or described in, the Registration Statement have been so
filed with the Commission or are fairly described in the Registration
Statement, as the case may be.
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(vi) The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action on the part of the
Company, and this Agreement has been duly executed and delivered by
the Company.
(vii) The execution and delivery of the Kirin Private Placement
Agreement have been duly authorized by all necessary corporate action
on the part of the Company, and the Kirin Private Placement Agreement
has been duly executed and delivered by, constitutes the valid and
binding obligation of and is enforceable in accordance with its terms
against, the Company, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights, and subject to general
equity principles and to limitations on availability of equitable
relief, including specific performance.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company is
a party or to which the property of the Company is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein.
(ix) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement and of the
Kirin Shares pursuant to the Kirin Private Placement Agreement, the
compliance by the Company with the other provisions of this Agreement
and with the Kirin Private Placement Agreement and the consummation of
the other transactions contemplated herein and therein, other than
performance of the Company's indemnification and contribution
obligations hereunder [and thereunder], as to which counsel need not
express an opinion, do not and will not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority having jurisdiction over the Company, except
such as have been obtained and such as may be required under state
securities and blue sky laws, as to which such counsel need not
express an opinion, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (x) any material indenture, mortgage, deed of trust,
lease or other agreement or instrument, known to such counsel, to
which the Company is a party or by which the Company or any of its
properties are bound; (y) the charter documents or by-laws of the
Company; or (z) any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company.
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(x) The Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes
a part thereof, pursuant to Rules 434 and 424(b) has been made in the
manner and within the time period required by Rules 434 and 424(b);
and no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings
for that purpose have been instituted or, to the best knowledge of
such counsel, are threatened by the Commission.
(xi) The registration statement on Form S-1 filed with respect
to the Securities on May 22, 2000 (including the Preliminary
Prospectus filed therewith) and each amendment thereto, any Rule
462(b) Registration Statement and the Prospectus (in each case, other
than the financial statements and schedules and other financial
information and statistical data derived therefrom, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission thereunder.
Such counsel shall also state that they have no reason to believe that the
Registration Statement (except as to the financial statements and schedules and
other financial information and statistical data derived therefrom), as of its
effective date and the date of such opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (except as to the financial statements and
schedules and other financial information and statistical data derived
therefrom), as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering any such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
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(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Peter J. Dehlinger, patent counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The information in the Prospectus under "Risk Factors-Risks
Related To Our Business-If we are unable to protect our proprietary
rights, we may not be able to compete effectively or operate
profitably," "Risk Factors-Risks Related To Our Business-The use of
our technologies could potentially conflict with the rights of
others," "Risk Factors-Risks Related To Our Business-We may incur
substantial costs as a result of litigation or other proceedings
relating to patent and other intellectual property rights" and
"Business-Intellectual Property," to the extent that it constitutes
matters of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and fairly and correctly presents the
information called for with respect thereto.
(ii) To the best of such counsel's knowledge, there are no
pending or threatened legal or governmental proceedings, nor
allegations on the part of any person of infringement, relating to
patent rights, trade secrets or know-how of the Company and, to the
best of such counsel's knowledge, no such proceedings are threatened
or contemplated.
(iii) To the best of such counsel's knowledge, the Company is
not infringing or otherwise violating any trade secrets, know-how or
valid patent claims of any persons, and no person is infringing or
otherwise violating any of the Company's know-how, patents or trade
secrets.
(iv) To the best of such counsel's knowledge, and subject to the
opinion rendered to the Company noted in the immediately preceding
paragraph (iii), the Company owns or possesses sufficient licenses or
other rights to use all know-how, patents and trade secrets necessary
to conduct the business now being or proposed to be conducted by the
Company as described in the Prospectus.
(v) To the best of such counsel's knowledge, the Company's
United States and foreign patents (the "Patents") are valid and
enforceable and are entitled to a statutory presumption of validity
and of ownership by the assignee. To the best of such counsel's
knowledge,
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there are no asserted or unasserted claims of any persons relating to
the scope or ownership of any of the Patents or any of the Company's
patent applications, whether United States or foreign
("Applications"), there are no liens which have been filed against any
of the Patents or the Applications, there are no material defects of
form in the preparation or filing of the Applications, the
Applications are being diligently prosecuted and none of the
Applications have been finally rejected or abandoned. The Company is
listed on the records of the PTO or appropriate foreign patent offices
as the sole assignee of record thereof.
(vi) Nothing has come to such counsel's attention that leads
such counsel to believe that any of the Applications will not
eventuate in issued patents, or that any patents issued in respect of
any such Applications will not be valid or will not afford the Company
reasonable patent protection relative to the subject matter thereof.
(vii) To the best of such counsel's knowledge, all pertinent
prior art references known to the Company or its counsel during the
prosecution of the Patents and the Applications were disclosed to the
PTO, and, to the best of such counsel's knowledge, neither the
Company's counsel during the prosecution of the Patents and the
Applications nor the Company made any misrepresentation to, or
concealed any material fact from, the PTO during such prosecution.
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date and the date of such opinion,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date or the date of
such opinion, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Representatives shall have received an opinion, dated as of
the Firm Closing Date, of Hyman, Phelps & McNamara, P.C., regulatory counsel for
the Company, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The statements in the Registration Statement under the
captions "Risk Factors-Risks Related To Our Business-We are subject
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to extensive regulation, which can be costly, time consuming and
subject us to unanticipated delays; even if we obtain regulatory
approval for some of our products, those products may still face
regulatory difficulties," "Risk Factors-Risks Related To Our Business-
Even if our cancer vaccines are approved, they might not be accepted
in the marketplace" and "Business-Governmental Regulations" are
accurate and complete statements or summaries of the United States
Food and Drug Administration laws and regulations therein set forth
and nothing has come to such counsel's attention that causes them to
believe that the above-referenced portions of the Registration
Statement and the Prospectus contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(ii) There are no adverse legal or governmental proceedings
pending relating to products or potential products of the Company, or
any such proceedings, to the knowledge of such counsel, threatened or
contemplated by governmental authorities or others.
(e) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Skadden, Arps, Slate, Meagher & Flom (Illinois), 333 West
Wacker Drive, Chicago, Illinois 60606-1285, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Representatives shall have received from Ernst & Young LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
within the meaning of the Act and the applicable rules and regulations
thereunder adopted by the Commission;
(ii) in their opinion, the financial statements and schedules
audited by them and included in the Registration Statement and the
Prospectus comply in form in all material respects with the applicable
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accounting requirements of the Act and the related published rules and
regulations;
(iii) on the basis of a reading of the latest available interim
unaudited financial statements of the Company, carrying out certain
specified procedures (which do not constitute an audit made in
accordance with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (iii), a reading of the minute
books of the stockholders, the board of directors and any committees
thereof of the Company, and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements of the Company included
in the Registration Statement and the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations thereunder adopted by the Commission or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus; and
(B) at a specific date not more than five business days prior to
the date of such letter, (1) there were any changes in the
capital stock or long-term debt of the Company or any decreases
in net current assets or stockholders' equity of the Company, in
each case compared with amounts shown on the March 31, 2000
unaudited balance sheet included in the Registration Statement
and the Prospectus, or (2) for the period from April 1, 2000 to
such specified date there were any decreases, as compared with
the period from April 1, 1999 to the date one year before such
specified date, in sales or net revenues, or any increases as
compared with such period in net loss or total per share amounts
of net loss of the Company, except, in all instances set forth in
clauses (1) and (2) above, for changes, decreases and increases
set forth in such letter;
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<PAGE>
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Company and are included in the Registration Statement
and the Prospectus under the captions "Prospectus Summary-Summary
Financial Information," "Capitalization," "Selected Financial Data,"
and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and elsewhere in the Prospectus, and have
compared such amounts, percentages and financial information with such
records of the Company and with information derived from such records
and have found them to be in agreement, excluding any questions of
legal interpretation; and
(v) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statement.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that: (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (f) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(g) The Representatives shall have received a certificate, dated the
Firm Closing Date, executed by the chief executive officer and the chief
financial officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or
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<PAGE>
omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented
as of the Firm Closing Date, does not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Firm Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or threatened or,
to the best of the Company's knowledge, are contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company
has not sustained any material loss or interference with its business
or properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been any Material
Adverse Change, or any development involving a prospective Material
Adverse Change, except in each case as described in or contemplated by
the Prospectus.
(h) The Representatives shall have received from each person who is a
director or officer of the Company and each person named in Schedule II hereto
an agreement to the effect that such person will not, directly or indirectly,
without the prior written consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose (or announce
any offer, sale, offer of sale, contract of sale, pledge, grant of any option to
purchase or other sale or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock of the Company or file any registration statement under the Act
with respect to any of the foregoing for a period of 180 days from the date of
the Prospectus, except pursuant to this Agreement.
(i) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
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(j) The sale of the Kirin Shares to Kirin pursuant to the Kirin
Private Placement Agreement, as described in the Prospectus, shall have been
consummated simultaneously with, or prior to, the consummation of the sale of
the Firm Securities to the Underwriters as contemplated by this Agreement.
(k) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934 (the "Exchange Act") against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under state law, common law, the Exchange Act, the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or in connection with or are caused by, related to
or based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in: (A) the Registration Statement or any
amendment or supplement thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or (B) any
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<PAGE>
application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by
or on behalf of the Company filed in any jurisdiction (foreign or
domestic) in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application");
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment or supplement thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or any Application a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided by
the Company or based upon written information furnished by or on
behalf of the Company, including, without limitation, slides, videos,
films, tape recordings, used in connection with the marketing of the
Securities, including, without limitation, statements communicated to
securities analysts employed by the Underwriters; or
(v) any untrue statement or alleged untrue statement of a
material fact included in the Prospectus or material distributed in
connection with the reservation and sale of the Directed Share Program
to directors, officers, employees and other parties associated with
the Company or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or Preliminary
Prospectuses, not misleading;
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity
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<PAGE>
with written information furnished to the Company by such Underwriter through
the Representatives or their counsel specifically for use therein; and provided,
further, that the Company will not be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such Securities to such person
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Act and it shall have been determined by a final judgment of
a court of competent jurisdiction that any Underwriter or any person controlling
such Underwriter would not have incurred such loss, claim, damage or liability
had the Prospectus (as amended or supplemented) been delivered or sent, unless
such failure to deliver the Prospectus (as amended or supplemented) was a result
of noncompliance by the Company with Section 5(d) and (e) of this Agreement.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have. The Company will not, without the prior written consent of
the Representatives, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person of the Company may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or necessary to make the
statements therein, in light of the
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<PAGE>
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) In connection with the offer and sale of the Directed Shares, the
Company agrees, promptly upon a request, in writing to indemnify and hold
harmless the Underwriters from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of the failure of
directors, officers, employees and other parties associated with the Company to
pay for and accept delivery of the Directed Shares which were properly
confirmed.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties, and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such
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<PAGE>
indemnified party in connection with the defense thereof, unless: (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions), or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(e) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect: (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities, or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the
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Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (e). Notwithstanding any other provision of
this paragraph (e), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total public offering price of the
Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective underwriting
obligations and not joint, and contributions among Underwriters shall be
governed by the provisions of the Prudential Securities Incorporated Master
Agreement Among Underwriters. For purposes of this paragraph (e), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect
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<PAGE>
to which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof, for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect regardless of any termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding or there
shall have been any Material Adverse Change, or any development
involving a prospective Material Adverse Change (including, without
limitation, a change in management or control of the Company);
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<PAGE>
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange or market system;
(iii) a banking moratorium shall have been declared by New York
or United States authorities; or
(iv) there shall have been: (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States, or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in the
sole judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended
as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof and Section 6.
12. Information Supplied by Underwriters. The statements set forth in
paragraphs 1, 3, 8, 9, and 12 under the heading "Underwriting" in any
Preliminary Prospectus or the Prospectus (to the extent such statements relate
to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, One New York Plaza, 16/th/ Floor, New York, NY 10292, Attention:
Jean-Claude Canfin; with a copy to Skadden, Arps, Slate, Meagher & Flom
(Illinois), 333 West Wacker Drive, Chicago, Illinois 60606-1285, facsimile 312-
407-0411, Attention: Rodd M. Schreiber, Esq.; if sent to the Company, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Company at 3005 First Avenue, Seattle,
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Washington 98121, Attention: T. Dennis George; with a copy to Cooley Godward
LLP, 4365 Executive Drive, Suite 1100, San Diego, California 92121-2128,
facsimile 858-453-3555, Attention: Julie M. Robinson, Esq.
14. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal Representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that: (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Company accepts for itself and
in connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Nothing herein shall limit the right
of any Underwriter to bring proceedings against the Company in the courts of any
other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
DENDREON CORPORATION
By:
---------------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written:
PRUDENTIAL SECURITIES INCORPORATED
SG COWEN SECURITIES CORPORATION
PACIFIC GROWTH EQUITIES, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By:
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Name: Jean-Claude Canfin
Title: Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE I
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- ------------
PRUDENTIAL SECURITIES INCORPORATED.....
SG COWEN SECURITIES CORPORATION........
PACIFIC GROWTH EQUITIES, INC...........
_____________
Total ..............
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SCHEDULE II
