<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996.
REGISTRATION NO. 333-03592
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TARGETED GENETICS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
WASHINGTON 2836 91-1549568
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1100 OLIVE WAY, SUITE 100
SEATTLE, WASHINGTON 98101
(206) 623-7612
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
H. STEWART PARKER
CHIEF EXECUTIVE OFFICER
1100 OLIVE WAY, SUITE 100
SEATTLE, WASHINGTON 98101
(206) 623-7612
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
STEPHEN M. GRAHAM CHARLES W. MULANEY, JR.
STEPHANIE G. DALEY-WATSON SKADDEN, ARPS, SLATE, MEAGHER & FLOM
PERKINS COIE 333 WEST WACKER DRIVE
1201 THIRD AVENUE, 40TH FLOOR CHICAGO, ILLINOIS 60606
SEATTLE, WASHINGTON 98101-3099 (312) 407-0700
(206) 583-8888
</TABLE>
------------------------
Approximate date of commencement of proposed sale to the public: AS SOON
AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ______
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / ______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ----------------------------------------------------------------------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement
2.1+ -- Form of Agreement and Plan of Merger dated as of April 16, 1996, by and among
Targeted Genetics Corporation, TGC Acquisition Corporation and RGene Therapeutics,
Inc.
3.1 -- Restated Articles of Incorporation (Exhibit 3.1)(B)
3.2 -- Amended and Restated Bylaws (Exhibit 3.2)(C)
4.1 -- Warrant to Purchase 11,000 shares of Series B Preferred Stock of Targeted Genetics
Corporation issued to MMC/GATX Partnership No. 1 on December 27, 1993 (Exhibit
4.2)(A)
4.2 -- Warrant to Purchase 11,000 shares of Series B Preferred Stock of Targeted Genetics
Corporation issued to LINC Capital Management Services, Ltd. on December 27, 1993
(Exhibit 4.3)(A)
4.3 -- Warrant to Purchase 18,701 shares of Common Stock of Targeted Genetics Corporation
issued to MMC/GATX Partnership No. 1 on November 30, 1994 (Exhibit 4.3)(B)
4.4 -- Warrant Agreement between Targeted Genetics Corporation and First Interstate Bank
of Washington, N.A., as Warrant Agent (Exhibit 4.4)(D)
4.5 -- Specimen Warrant Certificate (Exhibit 4.5)(C)
4.6 -- Warrant to Purchase 21,315 shares of Common Stock of Targeted Genetics Corporation
issued to Financing for Science International, Inc. on November 30, 1995(D)
5.1+ -- Opinion of Perkins Coie regarding legality of shares
10.1* -- Scientific Advisory Board Agreement, dated February 15, 1992, between Targeted
Genetics Corporation and Philip D. Greenberg (Exhibit 10.1)(A)
10.2* -- Scientific Advisory Board Agreement, dated February 15, 1992, between Targeted
Genetics Corporation and A. Dusty Miller (Exhibit 10.2)(A)
10.3* -- Scientific Advisory Board Agreement, dated February 15, 1992, between Targeted
Genetics Corporation and Richard D. Palmiter (Exhibit 10.3)(A)
10.4* -- Scientific Advisory Board Agreement, dated February 15, 1992, between Targeted
Genetics Corporation and George Stamatoyannopoulos (Exhibit 10.4)(A)
10.5 -- Form of Indemnification Agreement between the registrant and its officers and
directors (Exhibit 10.6)(A)
10.6* -- Non-exclusive License Agreement, dated as of November 19, 1991, between Fred
Hutchinson Cancer Research Center and Immunex Corporation (Exhibit 10.7)(A)
10.7* -- Gene Transfer Technology License Agreement, dated as of February 18, 1992, between
Immunex Corporation and Targeted Genetics Corporation (Exhibit 10.8)(A)
10.8* -- License Agreement, dated as of June 1, 1992, between Wisconsin Alumni Research
Foundation and Targeted Genetics Corporation (Exhibit 10.9)(A)
10.9* -- License Agreement, dated as of August 14, 1992, between Leland Stanford Junior
University and Targeted Genetics Corporation (Exhibit 10.10)(A)
</TABLE>
II-1
<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ----------------------------------------------------------------------------------
<C> <C> <S>
10.10* -- PHS Patent License Agreement -- Non-exclusive, dated as of July 13, 1993, between
National Institutes of Health Centers for Disease Control and Targeted Genetics
Corporation (Exhibit 10.13)(A)
10.11* -- Non-exclusive Patent License Agreement, dated as of December 25, 1993, between The
University of Florida Research Foundation, Inc. and Targeted Genetics Corporation
(Exhibit 10.14)(A)
10.12* -- Research and Exclusive License Agreement, dated as of January 1, 1994, between
Targeted Genetics Corporation and Fred Hutchinson Cancer Research Center (Exhibit
10.19)(A)
10.13* -- PHS Patent License Agreement -- Exclusive, dated as of March 10, 1994, between
National Institutes of Health Centers for Disease Control and Targeted Genetics
Corporation (Exhibit 10.15)(A)
10.14* -- Exclusive License Agreement, dated as of March 14, 1994, between Medical College
of Ohio and Targeted Genetics Corporation (Exhibit 10.16)(A)
10.15* -- License Agreement, dated as of March 16, 1994, between The Johns Hopkins
University and Targeted Genetics Corporation (Exhibit 10.17)(A)
10.16* -- License Agreement, dated as of March 28, 1994, between Targeted Genetics
Corporation and the University of Michigan (Exhibit 10.18)(A)
10.17* -- Exclusive License Agreement, dated as of March 28, 1994, between Fred Hutchinson
Cancer Research Center and Targeted Genetics Corporation (Exhibit 10.20)(A)
10.18* -- Exclusive License Agreement, dated as of August 25, 1994, between Targeted
Genetics Corporation and Fred Hutchinson Cancer Research Center (Exhibit 10.20)(B)
10.19 -- Olive Way Building Lease, dated as of November 20, 1993, between Metropolitan
Federal Savings and Loan Association and Targeted Genetics Corporation (Exhibit
10.21)(A)
10.20 -- First Amendment to Olive Way Building Lease, dated as of December 10, 1994,
between Targeted Genetics Corporation and Metropolitan Federal Savings and Loan
Association (Exhibit 10.22)(B)
10.21 -- MMC/GATX Partnership No. 1 Equipment Lease Agreement, dated as of December 27,
1993 (Exhibit 10.22)(A)
10.22 -- LINC Capital Management, Ltd. Equipment Lease Agreement, dated as of December 27,
1993 (Exhibit 10.23)(A)
10.23 -- Loan and Security Agreement, dated as of November 30, 1994, between MMC/GATX
Partnership No. 1 and Targeted Genetics Corporation (Exhibit 10.25)(B)
10.24 -- Master Equipment Lease Agreement, dated as of October 17, 1995, between Financing
for Science International, Inc. and Targeted Genetics Corporation (Exhibit
10.28)(D)
10.25 -- Registration Rights Agreement, dated as of April 27, 1992, among Targeted Genetics
Corporation and the holders of the Series A and Series B Convertible Preferred
Stock (Exhibit 10.26)(A)
10.26 -- 1992 Restated Stock Option Plan (Exhibit 10.26)(B)
10.27 -- Stock Option Plan for Nonemployee Directors (Exhibit 10.31)(D)
10.28*+ -- Development Agreement dated April 6, 1994, by and between Argus Pharmaceuticals,
Inc. and RGene Therapeutics, Inc.
10.29*+ -- Patent and Technology License Agreement effective as of March 1, 1994, by and
among the Board of Regents of the University of Texas M.D. Anderson Cancer Center
and RGene Therapeutics, Inc.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ----------------------------------------------------------------------------------
<C> <C> <S>
10.30*+ -- First Amended and Restated License Agreement effective October 12, 1995, by and
between The University of Tennessee Research Corporation and RGene Therapeutics,
Inc.
10.31*+ -- License Agreement dated October 12, 1994, by and between The University of
Pittsburgh -- of the Commonwealth System of Higher Education and RGene Therapeu-
tics, Inc.
10.32*+ -- Agreement dated as of May 28, 1996 by and between RGene Therapeutics, Inc. and
Laboratoires Fournier S.C.A.
11.1 -- Computation of net loss per share (D)
21.1 -- Subsidiaries of Registrant
23.1+ -- Consent of Ernst & Young LLP (contained on page II-6)
23.2+ -- Consent of Arthur Andersen LLP (contained on page II-7)
23.3+ -- Consent of Perkins Coie (contained in the opinion filed as Exhibit 5.1 hereto)
24.1+ -- Power of Attorney
99.1+ -- Consent of Martin P. Sutter as Director Nominee
99.2+ -- Consent of Austin M. Long, III as Director Nominee
</TABLE>
- ------------------
+ Previously filed.
* Confidential treatment has been requested from the Securities and Exchange
Commission for portions of these agreements.
(A) Incorporated by reference to the designated exhibit included with the
registrant's Form S-1 Registration Statement (Registration No. 33-77054)
filed March 30, 1994, as amended.
(B) Incorporated by reference to the designated exhibit included with the
registrant's Form 10-K for the year ended December 31, 1994.
(C) Incorporated by reference to the designated exhibit included with the
registrant's Form S-1 Registration Statement (No. 33-91500) filed April 24,
1995, as amended.
(D) Incorporated by reference to the designated exhibit included with the
registrant's Form 10-K for the year ended December 31, 1995.
(b) Financial Statement Schedules
All financial statement schedules have been omitted because the required
information is either included in the financial statements or the notes thereto
or is not applicable.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Seattle, State of Washington, on the 19th day of June, 1996.
TARGETED GENETICS CORPORATION
By: /s/ James A. Johnson
----------------------------------------
James A. Johnson, Vice President,
Finance,
Chief Financial Officer, Treasurer and
Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 3 to Registration Statement has been signed by the following
persons in the capacities indicated below on the 19th day of June, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<C> <S>
*H. Stewart Parker President, Chief Executive Officer and
- --------------------------------------------- Director (Principal Executive Officer)
H. Stewart Parker
/s/ James A. Johnson Vice President, Finance, Chief Financial
- --------------------------------------------- Officer, Treasurer and Secretary
James A. Johnson (Principal Financial Officer)
*Stephen A. Duzan Director
- ---------------------------------------------
Stephen A. Duzan
*James D. Grant Director
- ---------------------------------------------
James D. Grant
*Donald E. O'Neill Director
- ---------------------------------------------
Donald E. O'Neill
*Jeremy Curnock Cook Director
- ---------------------------------------------
Jeremy Curnock Cook
*By: /s/ James A. Johnson
- ---------------------------------------------
James A. Johnson
As Attorney-in-Fact
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ ------------------------------------------------------------------------ ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement
2.1+ Form of Agreement and Plan of Merger dated as of April 16, 1996, by and
among Targeted Genetics Corporation, TGC Acquisition Corporation and
RGene Therapeutics Inc.
3.1 Restated Articles of Incorporation (Exhibit 3.1) (B)
3.2 Amended and Restated Bylaws (Exhibit 3.2) (C)
4.1 Warrant to Purchase 11,000 shares of Series B Preferred Stock of (A)
Targeted Genetics Corporation issued to MMC/GATX Partnership No. 1 on
December 27, 1993 (Exhibit 4.2)
4.2 Warrant to Purchase 11,000 shares of Series B Preferred Stock of (A)
Targeted Genetics Corporation issued to LINC Capital Management
Services, Ltd. on December 27, 1993 (Exhibit 4.3)
4.3 Warrant to Purchase 18,701 shares of Common Stock of Targeted Genetics (B)
Corporation issued to MMC/GATX Partnership No. 1 on November 30, 1994
(Exhibit 4.3)
4.4 Warrant Agreement between Targeted Genetics Corporation and First (D)
Interstate Bank of Washington, N.A., as Warrant Agent (Exhibit 4.4)
4.5 Specimen Warrant Certificate (Exhibit 4.5) (C)
4.6 Warrant to Purchase 21,315 shares of Common Stock of Targeted Genetics (D)
Corporation issued to Financing for Science International, Inc. on
November 30, 1995
5.1+ Opinion of Perkins Coie regarding legality of shares
10.1 * Scientific Advisory Board Agreement, dated February 15, 1992, between (A)
Targeted Genetics Corporation and Philip D. Greenberg (Exhibit 10.1)
</TABLE>
<TABLE>
<C> <S> <C>
10.2 * Scientific Advisory Board Agreement, dated February 15, 1992, between (A)
Targeted Genetics Corporation and A. Dusty Miller (Exhibit 10.2)
10.3 * Scientific Advisory Board Agreement, dated February 15, 1992, between (A)
Targeted Genetics Corporation and Richard D. Palmiter (Exhibit 10.3)
10.4 * Scientific Advisory Board Agreement, dated February 15, 1992, between (A)
Targeted Genetics Corporation and George Samatoyannopoulos (Exhibit
10.4)
10.5 Form of Indemnification Agreement between the registrant and its (A)
officers and directors (Exhibit 10.6)
10.6 * Non-exclusive License Agreement, dated as of November 19, 1991, between (A)
Fred Hutchinson Cancer Research Center and Immunex Corporation (Exhibit
10.7)
10.7 * Gene Transfer Technology License Agreement, dated as of February 18, (A)
1992, between Immunex Corporation and Targeted Genetics Corporation
(Exhibit 10.8)
10.8 * License Agreement, dated as of June 1, 1992, between Wisconsin Alumni (A)
Research Foundation and Targeted Genetics Corporation (Exhibit 10.9)
10.9 * License Agreement, dated as of August 14, 1992, between Leland Stanford (A)
Junior University and Targeted Genetics Corporation (Exhibit 10.10)
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ ------------------------------------------------------------------------ ------------
<C> <S> <C>
10.10* PHS Patent License Agreement -- Non-exclusive, dated as of July 13, (A)
1993, between National Institutes of Health Centers for Disease Control
and Targeted Genetics Corporation (Exhibit 10.13)
10.11* Non-exclusive Patent License Agreement, dated as of December 25, 1993, (A)
between The University of Florida Research Foundation, Inc. and Targeted
Genetics Corporation (Exhibit 10.14)
10.12* Research and Exclusive License Agreement, dated as of January 1, 1994, (A)
between Targeted Genetics Corporation and Fred Hutchinson Cancer
Research Center (Exhibit 10.19)
10.13* PHS Patent License Agreement -- Exclusive, dated as of March 10, 1994, (A)
between National Institutes of Health Centers for Disease Control and
Targeted Genetics Corporation (Exhibit 10.15)
10.14* Exclusive License Agreement, dated as of March 14, 1994, between Medical (A)
College of Ohio and Targeted Genetics Corporation (Exhibit 10.16)
10.15* License Agreement, dated as of March 16, 1994, between The Johns Hopkins (A)
University and Targeted Genetics Corporation (Exhibit 10.17)
10.16* License Agreement, dated as of March 28, 1994, between Targeted Genetics (A)
Corporation and the University of Michigan (Exhibit 10.18)
10.17* Exclusive License Agreement, dated as of March 28, 1994, between Fred (A)
Hutchinson Cancer Research Center and Targeted Genetics Corporation
(Exhibit 10.20)
10.18* Exclusive License Agreement, dated as of August 25, 1994, between (B)
Targeted Genetics Corporation and Fred Hutchinson Cancer Research Center
(Exhibit 10.20)
10.19 Olive Way Building Lease, dated as of November 20, 1993, between (A)
Metropolitan Federal Savings and Loan Association and Targeted Genetics
Corporation (Exhibit 10.21)
10.20 First Amendment to Olive Way Building Lease, dated as of December 10, (B)
1994, between Targeted Genetics Corporation and Metropolitan Federal
Savings and Loan Association (Exhibit 10.22)
10.21 MMC/GATX Partnership No. 1 Equipment Lease Agreement, dated as of (A)
December 27, 1993 (Exhibit 10.22)
10.22 LINC Capital Management, Ltd. Equipment Lease Agreement, dated as of (A)
December 27, 1993 (Exhibit 10.23)
10.23 Loan and Security Agreement, dated as of November 30, 1994, between (B)
MMC/GATX Partnership No. 1 and Targeted Genetics Corporation (Exhibit
10.25)
10.24 Master Equipment Lease Agreement, dated as of October 17, 1995, between (D)
Financing for Science International, Inc. and Targeted Genetics
Corporation (Exhibit 10.28)
10.25 Registration Rights Agreement, dated as of April 27, 1992, among (A)
Targeted Genetics Corporation and the holders of the Series A and Series
B Convertible Preferred Stock (Exhibit 10.26)
10.26 1992 Restated Stock Option Plan (Exhibit 10.26) (B)
10.27 Stock Option Plan for Nonemployee Directors (Exhibit 10.31) (D)
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ ------------------------------------------------------------------------ ------------
<C> <S> <C>
10.28*+ Development Agreement dated April 6, 1994, by and between Argus
Pharmaceuticals, Inc. and RGene Therapeutics, Inc.
10.29*+ Patent and Technology License Agreement effective as of March 1, 1994,
by and among the Board of Regents of the University of Texas M.D.
Anderson Cancer Center and RGene Therapeutics, Inc.
10.30*+ First Amended and Restated License Agreement effective October 12, 1995,
by and between The University of Tennessee Research Corporation and
RGene Therapeutics, Inc.
10.31*+ License Agreement dated October 12, 1994, by and between The University
of Pittsburgh -- of the Commonwealth System of Higher Education and
RGene Therapeutics, Inc.
10.32*+ Agreement dated as of May 28, 1996 by and between RGene Therapeutics,
Inc. and Laboratoires Fournier S.C.A.
11.1 Computation of net loss per share(D)
21.1 Subsidiaries of Registrant
23.1+ Consent of Ernst & Young LLP (contained on page II-6)
23.2+ Consent of Arthur Andersen LLP (contained on page II-7)
23.3+ Consent of Perkins Coie (contained in the opinion filed as Exhibit 5.1
hereto)
24.1+ Power of Attorney
99.1+ Consent of Martin P. Sutter as Director Nominee
99.2+ Consent of Austin M. Long, III as Director Nominee
</TABLE>
- ------------------
+ Previously filed.
* Confidential treatment has been requested from the Securities and Exchange
Commission for portions of these agreements.
(A) Incorporated by reference to the designated exhibits included with the
registrant's Form S-1 Registration Statement (Registration No. 33-77054)
filed March 30, 1994, as amended.
(B) Incorporated by reference to the designated exhibit included with the
registrant's Form 10-K for the year ended December 31, 1994.
(C) Incorporated by reference to the designated exhibit included with the
registrant's Form S-1 Registration Statement (No. 33-91500) filed April 24,
1995, as amended.
(D) Incorporated by reference to the designated exhibit included with the
registrant's Form 10-K for the year ended December 31, 1995.
<PAGE> 1
3,500,000 Shares
TARGETED GENETICS CORPORATION
Common Stock
UNDERWRITING AGREEMENT
June 19, 1996
VECTOR SECURITIES INTERNATIONAL, INC.
GENESIS MERCHANT GROUP SECURITIES
As Representatives of the Several Underwriters
c/o VECTOR SECURITIES INTERNATIONAL, INC.
1751 Lake Cook Road, Suite 350
Deerfield, Illinois 60015
Ladies and Gentlemen:
Targeted Genetics Corporation, a Washington corporation (the
"Company"), proposes to issue and sell an aggregate of 3,500,000 shares of its
common stock, par value $0.01 per share, (the "Initial Securities") to the
several Underwriters named in Schedule I hereto (the "Underwriters") for whom
Vector Securities International, Inc. ("Vector") and Genesis Merchant Group
Securities are acting as representatives (collectively, the "Representatives").
In addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the several Underwriters, upon the terms and conditions set
forth in Section 2 hereof, an option to purchase up to an additional 525,000
shares of Common Stock of the Company (the "Option Securities"). The Initial
Securities and the Option Securities are hereinafter collectively referred to as
the "Securities." The Company's common stock, par value $0.01 per share,
including the Securities, is hereinafter referred to as the "Common Stock." The
Company wishes to confirm as follows its agreements with you and the other
Underwriters on
<PAGE> 2
whose behalf you are acting in connection with the several purchases by the
Underwriters of the Securities:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-3592) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus, or prospectuses, and
either (A) has prepared and filed, prior to the effective date of such
registration statement, an amendment to such registration statement, including a
final prospectus or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file a prospectus, in accordance with
the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of this Agreement.
Additionally, if the Company has elected to rely upon Rule 434 ("Rule 434") of
the 1933 Act Regulations, the Company will prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b),
promptly after execution and delivery of this Agreement. The information, if
any, included in such prospectus or in such Term Sheet, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it becomes effective (a)
pursuant to paragraph (b) of Rule 430A, is referred to herein as the "Rule 430A
Information," or (b) pursuant to paragraph (d) of Rule 434, is referred to
herein as the "Rule 434 Information." Each prospectus used before the time such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after effectiveness and prior to the execution and delivery of this Agreement is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto, at the time it became effective and including, if
applicable, the Rule 430A Information or the Rule 434 Information, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term Registration
Statement shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection
with the offering of the Securities
2
<PAGE> 3
is herein referred to as the "Prospectus." If Rule 434 is relied upon, the term
"Prospectus" shall refer to the preliminary prospectus last furnished to the
Underwriters in connection with the offering of the Securities, together with
the Term Sheet, and all references to the date of the Prospectus shall mean the
date of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy, if any, filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein, the Company hereby agrees to issue
and sell to each Underwriter and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $ per share
(the "Purchase Price Per Share"), the number of Initial Securities set forth in
Schedule I opposite the name of such Underwriter under the column "Number of
Initial Securities to be Purchased from the Company" (or such number of Initial
Securities increased as set forth in Section 10 hereof).
Upon the basis of the representations, warranties and
agreements contained herein and subject to all the terms and conditions set
forth herein, the Company hereby grants an option (the "Over-Allotment Option")
to the Underwriters to purchase from the Company, at the Purchase Price Per
Share, up to an aggregate of 525,000 Option Securities. Option Securities may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Securities. Such option shall expire at 5:00 P.M.,
Chicago time, on the 30th day after the date of this Agreement (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). Such
over-allotment option may be exercised at any time or from time to time until
its expiration. Upon any exercise of the Over-Allotment Option, each
Underwriter, severally and not jointly, agrees to purchase from the Company that
proportion of the total number of Option Securities as is equal to the
percentage of Initial Securities that such Underwriter is purchasing from the
Company (or such number of Initial Securities increased as set forth in Section
10 hereof),
3
<PAGE> 4
subject to such adjustments as you may determine to avoid fractional shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by
you that the Underwriters propose to make a public offering of the Securities as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable and initially to offer the Securities upon the
terms set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery
to the Underwriters of and payment for the Initial Securities shall be made at
the office of Perkins Coie, 1201 Third Avenue, 40th Floor, Seattle, Washington
98101, at 7:00 A.M., Seattle time, on the third (fourth, if the pricing occurs
after 4:30 p.m. (Eastern Time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10 hereof)
(the "Closing Date"). The place of closing for the Initial Securities and the
Closing Date may be varied by agreement among you and the Company.
Delivery to the Underwriters of and payment for any Option
Securities to be purchased by the Underwriters shall be made at the
aforementioned office of Perkins Coie at such time on such date (an "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than two nor later than ten
business days after the giving of the notice hereinafter referred to, as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company of the Underwriters' determination to purchase a number, specified in
such notice, of Option Securities. The place of closing for any Option
Securities and the Option Closing Date for such Option Securities may be varied
by agreement between you and the Company.
Certificates for the Initial Securities and for any Option
Securities to be purchased hereunder shall be registered in such names and in
such denominations as you shall request by written notice (it being understood
that a facsimile transmission shall be deemed written notice) prior to 9:30
A.M., Chicago time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Chicago, Illinois or New York, New York, as
4
<PAGE> 5
requested by you in the aforesaid notice, for inspection and packaging not later
than 9:30 A.M., Chicago time, on the business day next preceding the Closing
Date or any Option Closing Date, as the case may be. The certificates evidencing
the Initial Securities and any Option Securities to be purchased hereunder shall
be delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment of the purchase price therefor by certified or official
bank check or checks payable in New York Clearing House (next day) funds to the
order of the Company. It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, acknowledge receipt of, and make payment
of the purchase price for, the Initial Securities and the Option Securities, if
any, which it has agreed to purchase. Vector, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Date or the Option Closing Date, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters as follows:
a. The Company will notify the Representatives
immediately, and confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation of any proceedings for such purpose and (v)
during the period when the Prospectus is required to be delivered under the 1933
Act or Securities Exchange Act of 1934, as amended (the "1934 Act"), of any
change, or any event or occurrence which could result in such a change, in the
Company's condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the happening of any event, including
the filing of any information, documents or reports pursuant to the 1934 Act,
that makes any statement of a material fact made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registra-
5
<PAGE> 6
tion Statement or the Prospectus (as then amended or supplemented) untrue or
which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to state a material fact required by
the 1933 Act or the 1933 Act Regulations to be stated therein or necessary in
order to make the statements therein not misleading, or of the necessity to
amend or supplement the Prospectus to comply with the 1933 Act, the 1933 Act
Regulations or any other law. The Company shall use its best efforts to prevent
the issuance of any stop order or order suspending the qualification or
exemption of the Securities under any state securities or Blue Sky laws, and, if
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption of the Securities under any state securities or Blue Sky laws, the
Company shall use every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
b. The Company will give the Underwriters notice of
its intention to prepare or file any amendment to the Registration Statement
(including any post-effective amendment), any Rule 462(b) Registration
Statement, any Term Sheet or any amendment or supplement to the Prospectus
(including any revised prospectus or Term Sheet and preliminary prospectus which
the Company proposes for use by the Underwriters in connection with the offering
of the Securities which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether or not such
revised prospectus or Term Sheet and preliminary prospectus is required to be
filed pursuant to Rule 424(b)), whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Underwriters with copies of any Rule 462(b)
Registration Statement, Term Sheet, amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such Rule 462(b) Registration Statement, Term Sheet, amendment or
supplement or use any such prospectus to which the Underwriters or counsel for
the Underwriters shall object.
c. The Company has furnished or will deliver to the
Underwriters and their counsel, without charge, as many signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith
6
<PAGE> 7
or incorporated by reference therein) as the Underwriters may reasonably
request. If applicable, the copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
d. The Company will furnish to each Underwriter,
without charge, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act, the 1934 Act,
the 1933 Act Regulations or the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations"). If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e. The Company will comply with the 1933 Act and
the 1933 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act, the 1934 Act, the 1933
Act Regulations or the 1934 Act Regulations to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
5(b) of the 1933 Act, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements and the Company will
7
<PAGE> 8
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
f. During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to shareholders or filed with the Commission or the Nasdaq
National Market ("NASDAQ"), and (ii) from time to time such other information
concerning the Company as you may request, subject to appropriate
confidentiality provisions with respect to any material nonpublic information so
furnished.
g. The Company will use its best efforts, in
cooperation with counsel to the Underwriters, to qualify the Securities for
offering and sale under the applicable securities or Blue Sky laws of such
states and other jurisdictions of the United States as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement.
h. The Company will make generally available to its
security holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
i. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
j. If, at the time that the Registration Statement
becomes effective, any Rule 430A Information or Rule 434 Informa-
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<PAGE> 9
tion shall have been omitted therefrom, then immediately following the execution
of this Agreement, the Company will prepare, and file or transmit for filing
with the Commission in accordance with Rule 430A or Rule 434 and Rule 424(b),
copies of a Prospectus or Term Sheet containing such Rule 430A Information and
Rule 434 Information, respectively, or, if required by Rule 430A, a
post-effective amendment to the Registration Statement (including an amended
Prospectus), containing such Rule 430A Information.
k. If the Company elects to rely upon 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 of the 1933 Act Regulations by the earlier of (i) 10:00
P.M. Eastern Time on the date hereof and (ii) the time confirmations are sent or
given, as specified by Rule 462(b)(2).
l. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
m. During a period of 90 days from the date of the
Prospectus, the Company will not, without the prior written consent of Vector,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of any security outstanding
on the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant
9
<PAGE> 10
to existing employee benefit plans of the Company referred to in the Prospectus
or (D) any shares of Common Stock issued pursuant to any non-employee director
stock plan.
n. The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
its current officers, directors, Immunex Corporation and International
Biotechnology Trust plc.
o. The Company will supply the Underwriters with
copies of all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Securities under the
1933 Act.
p. Prior to the Closing Date, the Company shall
furnish to the Underwriters, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company and its sole
subsidiary set forth on Exhibit 21 to Item 16(a) of the Registration Statement
(the "Subsidiary"), for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
q. Prior to the Closing Date, the Company will
issue no press release or other communications directly or indirectly and hold
no press conference with respect to the Company or its Subsidiary, the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of any of them, or the offering of the Securities, without the prior
written consent of the Representatives unless in the judgment of the Company and
its counsel, and after notification to the Representatives, such press release
or communication is required by law.
r. The Company will comply with all provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida statutes, and all
regulations promulgated thereunder relating to issuers doing business with Cuba.
s. The Company has not taken, nor will it take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Securities.
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<PAGE> 11
t. The Company will use its best efforts to
maintain the quotation of the Common Stock (including the Securities) on NASDAQ
and will file with NASDAQ all documents and notices required by NASDAQ of
companies that have securities that are traded in the over-the-counter market
and quotations for which are reported by NASDAQ.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter that:
a. When the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto becomes
effective, at the date of the Prospectus, if different, and at the Closing Date
and the Option Closing Date, as the case may be, (i) the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and supplements
thereto complied or will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any supplements or amendments thereto will not at
the date of the Prospectus, at the date of any such supplements or amendments,
or at the Closing Date or the Option Closing Date, if any, include an 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. If Rule 434 is used, the Company will comply
with the requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the Prospectus included in
the Registration Statement at the time it became effective. The representations
and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus relating to any Underwriter made
in reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter, through Vector expressly for use in the Registration
Statement or Prospectus. The Company has not distributed any offering materials
in connection with the offering or sale of the Securities other than the
Registration Statement, the preliminary prospectus, the Prospectus, the Term
Sheet, if applicable, or any other materials, if any, permitted by the 1933 Act
or the 1933 Act Regulations.
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<PAGE> 12
b. Each preliminary prospectus and the prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act Regulations
and, if applicable, each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
c. The accountants who certified the financial
statements included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
d. The financial statements included in the
Registration Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and no supporting schedules are required to be included in
the Registration Statement. The summary financial and statistical data set forth
in the Prospectus are prepared on an accounting basis consistent with such
financial statements.
e. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiary considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
except with respect to the Merger (as defined below), there have been no
transactions entered into by the Company or its Subsidiary, other than those in
the ordinary course of business, which are material with respect to the Company,
and (iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock. The Company has no
material contingent obligations which are not specifically
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<PAGE> 13
disclosed in the Company's financial statements that are included in the
Registration Statement.
f. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Washington with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
Subsidiary considered as one enterprise.
g. The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
Subsidiary considered as one enterprise; all of the issued and outstanding
capital stock of the Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, charge, encumbrance, claim or equity.
There are no outstanding subscriptions, options, warrants, commitments,
convertible or exchangeable securities or other rights granted by the Company or
its Subsidiary to acquire any shares of capital stock of or ownership interests
in any subsidiary of the Company and there are no commitments, plans or
arrangements to do so. Except as described in the Prospectus, the Company does
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any
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<PAGE> 14
corporation or have any equity interest in any firm, partnership, joint venture,
association or other entity.
h. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement or pursuant
to reservations, agreements, employee or director benefit plans or the exercise
of convertible securities referred to in the Prospectus); the shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and have not been issued in
violation of or are not otherwise subject to any preemptive or other rights to
subscribe for or purchase securities; the Securities have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully paid and
nonassessable; the certificates evidencing the Securities are in due and proper
form under Washington law; the authorized capital stock of the Company,
including the Securities, conforms to all statements relating thereto contained
in the Prospectus; and the issuance of the Securities is not subject to
preemptive or other rights to subscribe for or purchase securities. There are no
outstanding subscriptions, options, warrants, convertible or exchangeable
securities or other rights granted to or by the Company to purchase shares of
Common Stock or other securities of the Company and there are no commitments,
plans or arrangements to issue any shares of Common Stock or any security
convertible into or exchangeable for Common Stock, in each case other than as
described in the Prospectus.
i. Except as disclosed in the Registration
Statement and except as would not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its Subsidiary considered as one enterprise, (A) the Company and its
Subsidiary are each in compliance with all applicable Environmental Laws (as
defined below), (B) the Company and its Subsidiary have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with the requirements of such permits authorizations
and approvals, (C) there are no pending or, to the best knowledge of the
Company, threatened
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<PAGE> 15
Environmental Claims against the Company or its Subsidiary and (D) under
applicable law, there are no circumstances with respect to any property or
operations of the Company or its Subsidiary that are reasonably likely to form
the basis of an Environmental Claim against the Company or its Subsidiary.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgement, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
j. Neither the Company nor its Subsidiary is in
violation of its charter or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or agreement to which the Company
or its Subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or its Subsidiary is subject;
and the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and the fulfillment of the
terms hereof have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or its Subsidiary pursuant to, any contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement,
voting trust or other instrument or agreement to which the Company or its
Subsidiary is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or its Subsidiary is subject, nor
will such action result in any violation of the provisions of the charter or
bylaws of the Company or its
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<PAGE> 16
Subsidiary or any applicable statute, law, rule, regulation, ordinance,
decision, directive or order.
k. No labor dispute with the employees of the
Company or its Subsidiary exists or, to the best knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers or
contractors which might, singly or in the aggregate, be expected to result in
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiary considered as one enterprise.
l. There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting the
Company or its Subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiary considered as one enterprise, or
which, singly or in the aggregate, might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental proceedings to
which the Company or its Subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or its Subsidiary which are required to be
filed as exhibits to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
m. Except as otherwise specifically disclosed in
the Prospectus, the Company and its Subsidiary own or are licensed to use all
patents, patent applications, inventions, trademarks, trade names, applications
for registration of trademarks, service marks, service mark applications,
copyrights, know-how, manufacturing processes, formulae, trade secrets, licenses
and rights in any thereof and any other intangible property and assets (herein
called the "Proprietary Rights") which are material to the business of the
16
<PAGE> 17
Company and its Subsidiary considered as one enterprise as now conducted and as
proposed to be conducted, in each case as described in the Prospectus. The
description of the Proprietary Rights in the Prospectus is correct in all
material respects and fairly and correctly describes the Company's and its
Subsidiary's rights with respect thereto. The Company does not have any
knowledge of, and the Company has not given or received any notice of, any
pending conflicts with or infringement of the rights of others with respect to
any Proprietary Rights or with respect to any license of Proprietary Rights
which are material to the business of the Company and its Subsidiary considered
as one enterprise. 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. Neither the Company
nor its Subsidiary is 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 manner
which would have a material adverse effect on the use of any of the Proprietary
Rights. Except as otherwise specifically disclosed in the Prospectus, to the
best knowledge of the Company, no Proprietary Rights used by the Company or its
Subsidiary, and no services or products sold by the Company or its Subsidiary,
conflict with or infringe upon any proprietary rights of any third party.
Neither the Company nor its Subsidiary has received written notice of any
pending conflict with or infringement upon such third-party proprietary rights.
Neither the Company nor its Subsidiary has entered into any consent,
indemnification, forbearance to sue or settlement agreement with respect to
Proprietary Rights other than in the ordinary course of business. No claims have
been asserted by any person with respect to the validity of the Company's or its
Subsidiary'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 which are material to the business of the
Company and its Subsidiary considered as one enterprise 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 and its Subsidiary have complied, in all material
respects, with their
17
<PAGE> 18
respective contractual obligations relating to the protection of the Proprietary
Rights which are material to the business of the Company and its Subsidiary
considered as one enterprise used pursuant to licenses. To the best knowledge of
the Company, no person is infringing on or violating the Proprietary Rights
which are material to the business of the Company and its Subsidiary considered
as one enterprise owned or used by the Company or its Subsidiary.
n. No registration, authorization, approval,
qualification or consent of any court or governmental authority or agency is
necessary in connection with the offering, issuance or sale of the Securities
hereunder, except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities or Blue Sky laws (or such as may be required by
the National Association of Securities Dealers, Inc. ("NASD")).
o. The Company and its Subsidiary possess and are
operating in compliance with all material licenses, certificates, consents,
authorities, approvals and permits (collectively, "permits") from all state,
Federal, foreign and other regulatory agencies or bodies necessary to conduct
the businesses now operated by them, and neither the Company nor its Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such permit or any circumstance which would lead it to
believe that such proceedings are reasonably likely which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
Subsidiary considered as one enterprise.
p. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
principles of equity and except as rights to indemnity and contribution
hereunder may be limited by Federal or state securities laws or the public
policy underlying such laws.
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q. Except as described in the Prospectus, there are
no persons with registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
r. No order preventing or suspending the use of any
preliminary prospectus has been issued and no proceedings for that purpose are
pending or, to the knowledge of the Company, threatened by the Commission; and
to the best knowledge of the Company, no order suspending the offering of the
Securities in any jurisdiction designated by the Underwriters pursuant to
Section 5(g) of this Agreement has been issued and, to the best knowledge of the
Company, no proceedings for that purpose have been instituted or threatened or
are contemplated.
s. The Company and its Subsidiary have good and
marketable title to their respective properties, free and clear of all material
security interests, mortgages, pledges, liens, charges, encumbrances and claims
of record. The properties of the Company and its Subsidiary are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real properties held under lease by the Company and
its Subsidiary are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the conduct
of the business of the Company and its Subsidiary considered as one enterprise.
t. The Company and its Subsidiary maintain a system
of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
u. The Company and its Subsidiary have conducted
and are conducting their respective businesses in compliance with all applicable
Federal, state, local and foreign statutes, laws, rules, regulations,
ordinances, codes, decisions, decrees, direc-
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<PAGE> 20
tives and orders, except where the failure to do so would not, singly or in the
aggregate, have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Company and its Subsidiary considered as one enterprise.
v. To the best of the Company's knowledge, the
Company takes security measures adequate to assert trade secret protection in
its non-patented technology.
w. To the best of the Company's knowledge, neither
the Company nor its Subsidiary nor any employee or agent of the Company or its
Subsidiary has made any payment of funds of the Company or its Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
x. The Company is not now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds"
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
y. 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 1933 Act and were duly
registered or subject to an available exemption from the registration
requirements of the applicable state securities or Blue Sky laws.
z. The Company has complied with all provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida statutes, and all
regulations promulgated thereunder relating to issuers doing business with Cuba.
aa. The Common Stock is registered pursuant to
Section 12(g) of the 1934 Act. The Securities have been duly authorized for
quotation on NASDAQ. The Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common Stock under the
1934 Act or delisting the Common Stock from NASDAQ, nor has the Company
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<PAGE> 21
received any notification that the Commission or NASDAQ is contemplating
terminating such registration or listing.
bb. Neither the Company nor, to its knowledge, any
of its officers, directors or affiliates has taken, and at the Closing Date and
at any later Option Closing Date, neither the Company nor, to its knowledge, any
of its officers, directors or affiliates will have taken, directly or
indirectly, any action which has constituted, or might reasonably be expected to
constitute, the stabilization or manipulation of the price of sale or resale of
the Securities.
cc. The Company and its Subsidiary maintain
insurance of the types and in amounts adequate for its and its Subsidiary's
business and consistent with insurance coverage maintained by similar companies
in similar business, including but not limited to, insurance covering clinical
trial liability, product liability and real and personal property owned or
leased against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and effect.
dd. The Company and its Subsidiary have filed all
material tax returns required to be filed, which returns are true and correct in
all material respects, and neither the Company nor its Subsidiary is in default
in the payment of any taxes, including penalties and interest, assessments, fees
and other charges, shown thereon due or otherwise assessed, other than those
being contested in good faith and for which adequate reserves have been provided
or those currently payable without interest which were payable pursuant to said
returns or any assessments with respect thereto.
ee. Except as described in the Prospectus, to the
best of the Company's knowledge, there are no rulemaking or similar proceedings
before The United States Food and Drug Administration or comparable Federal,
state, local or foreign government bodies which involve or affect the Company or
its Subsidiary, which, if the subject of an action unfavorable to the Company or
its Subsidiary, could involve a prospective material adverse change in or effect
on the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its Subsidiary considered as one
enterprise.
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<PAGE> 22
ff. 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, cooperative or any similar
agreement, including, without limitation, the collaborative research and license
agreements listed under the section of the Prospectus entitled, "Collaborative
and Licensing Agreements." Each such collaborative and licensing agreement is in
effect substantially as described in such section of the Prospectus.
gg. To the knowledge of the Company, if any full-
time employee identified in the Prospectus has entered into any non-competition,
non-disclosure, confidentiality or other similar agreement with any party other
than the Company or its Subsidiary, such employee is neither in violation
thereof nor is expected to be in violation thereof as a result of the business
conducted or expected to be conducted by the Company or its Subsidiary as
described in the Prospectus or such person's performance of his obligations to
the Company or its Subsidiary; and neither the Company nor its Subsidiary has
received written notice that any consultant or scientific advisor of the Company
or its Subsidiary is in violation of any non-competition, non-disclosure,
confidentiality or similar agreement.
hh. On or prior to the date hereof, the Company and
RGene Therapeutics, Inc. ("RGene") have received the requisite approval or
approvals of that certain Agreement and Plan of Merger, dated as of April 16,
1996 (the "Merger Agreement"), by and among the Company, TGC Acquisition
Corporation and RGene, pursuant to which TGC Acquisition Corporation will be
merged with and into RGene (the "Merger"). Except as set forth in the
Prospectus, no such approval or approvals imposes on the Company or any
affiliate thereof any condition that adversely affects the ability of the
Company and its affiliates to conduct their business as the same is described in
the Prospectus or adversely affects the ability of the Underwriters to market
the Securities on the terms and in the manner contemplated by the Prospectus.
ii. The Certificate of Merger with respect to the
Merger has been filed with the Secretary of State of the State of Delaware and
has become effective, the Merger has occurred and all other transactions
contemplated by the Merger Agreement to be
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<PAGE> 23
consummated on or prior to the Closing Date have been consummated without waiver
or modification thereto.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold
harmless (i) each Underwriter and (ii) each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective directors, officers, partners and employees of
any of the Underwriters or any controlling person (any person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Person") to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities and expenses whatsoever (including, without
limitation, all reasonable costs of pursuing, investigating and defending any
claim, suit or action or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person), directly or indirectly, caused
by, related to, based upon or arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information, if applicable, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Underwriter furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph a. with respect to any preliminary
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<PAGE> 24
prospectus shall not inure to the benefit of any Underwriter (or related
Indemnified Person) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Securities by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the 1933 Act or the 1933 Act Regulations, and
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact contained in such preliminary prospectus was corrected in the
Prospectus (or any amendment or supplement thereto), provided that the Company
has delivered the Prospectus to the several Underwriters in requisite quantity
on a timely basis to permit such delivery or sending.
b. If any action, suit or proceeding shall be
brought against any Indemnified Person in respect of which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify in
writing the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Indemnified Person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel or (iii) the named parties to any such
action, suit, investigation or proceeding (including any impleaded parties)
include both such Indemnified Person and the indemnifying parties and
representation of such Indemnified Person and any indemnifying party by the same
counsel would, in the reasonable judgment of the Indemnified Person, be
inappropriate due to actual or potential differing interests between them (in
which case the indemnifying party shall not have the right to assume the defense
of such action, suit or proceeding on behalf of such Indemnified Person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Persons not having actual or
potential differing
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<PAGE> 25
interests with you or among themselves, which firm shall be designated in
writing by Vector, and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their written
consent, which consent shall not be unreasonably withheld, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Indemnified Person, to the extent provided in the preceding
paragraph, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
c. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, any person who controls the Company within
the meaning of Section 15 of the 1933 Act, to the same extent as the foregoing
indemnity from the Company to each Indemnified Person, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through Vector expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus, or any amendment or supplement
thereto. If any action, suit, investigation or proceeding shall be brought
against the Company, any of its directors, any such officer or any such
controlling person based on the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Company by paragraph (b) above, and the Company, its directors, any such officer
and any such controlling person shall have the rights and duties given to the
Indemnified Persons by paragraph (a) above.
d. If the indemnification provided for in this
Section 7 is unavailable to, or insufficient to hold harmless, an indemnified
party under paragraphs (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
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<PAGE> 26
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or judicial determination, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand, 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 hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus or, if Rule 434 is used, the corresponding
location on the Term Sheet. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of the Company set forth herein shall
be in addition to any liability or obligation the Company may otherwise have to
any Indemnified Person.
e. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter (or any of its related Indemnified Persons) shall be
required to contribute (whether pursuant to subsection (a) or (c) or otherwise)
any amount in excess of the
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<PAGE> 27
underwriting discount applicable to the Securities underwritten by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Securities set forth opposite their
names in Schedule I hereto (or such numbers of Securities increased as set forth
in Section 10 hereof) and not joint.
f. No indemnifying party shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such action, suit or proceeding.
g. Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Indemnified Person, the Company,
its directors or officers or any person controlling the Company, (ii) acceptance
of any Securities and payment therefor hereunder and (iii) any termination of
this Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Initial Securities hereunder are
subject to the following conditions:
a. The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective on the date hereof,
or with the consent of the Representatives, at a later date and time; no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission. If
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<PAGE> 28
the Company has elected to rely upon Rule 430A, Rule 430A Information previously
omitted from the effective Registration Statement pursuant to Rule 430A shall
have been transmitted to the Commission for filing pursuant to Rule 424(b)
within the prescribed time period and the Company shall have provided evidence
satisfactory to the Underwriters of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A. If the Company has
elected to rely upon Rule 434, a Term Sheet shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time period.
b. The Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing Date, of
Perkins Coie, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
A. The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Washington.
B. The Company has corporate power and authority to
own or lease its properties and to conduct its business as
described in the Registration Statement and the Prospectus and
to enter into and perform its obligations under this
Agreement.
C. To their knowledge, the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to qualify would not have a
material adverse effect on the Company.
D. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent
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issuances, if any, pursuant to reservations, agreements,
employee or director benefit plans or the exercise of
convertible securities referred to in the Prospectus), and the
shares of issued and outstanding capital stock of the Company,
including the Securities, have been duly authorized and
validly issued and are fully paid and nonassessable and, to
their knowledge, have not been issued in violation of or are
not otherwise subject to any preemptive rights or, to such
counsel's knowledge, other rights to subscribe for or purchase
securities.
E. The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and
fully paid and nonassessable; and the issuance of the
Securities is not subject to preemptive or, to such counsel's
knowledge, other rights to subscribe for or purchase
securities.
F. The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own and lease its properties and to
conduct its business as described in the Registration
Statement and, to their knowledge, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to qualify would not have a
material adverse effect on the Company; all of the issued and
outstanding capital stock of the Subsidiary has been duly
authorized and
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<PAGE> 30
validly issued, is fully paid and nonassessable and, to their
knowledge, is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
G. To their knowledge, except as described in the
Prospectus, there are no outstanding options, warrants or
other rights granted to or by the Company to purchase shares
of Common Stock or other securities of the Company and there
are no commitments, plans or arrangements to issue any shares
of Common Stock or other securities.
H. This Agreement has been duly authorized, executed
and delivered by the Company.
I. At the time the Registration Statement became
effective and at the Closing Date, the Registration Statement
(other than the financial statements, as to which no opinion
need be rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
J. The form of certificate used to evidence each of
the Securities is in due and proper form.
K. To their knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or its Subsidiary is a party or to which any property
of the Company or its Subsidiary is subject which are required
to be disclosed in the Registration Statement other than those
disclosed therein, and all pending legal or governmental
proceedings to which the Company or its Subsidiary is a party
or to which any of their property is subject
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which are not described in the Registration Statement,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
L. The information in the Prospectus under "Risk
Factors--Shares Eligible for Future Sale; Registration
Rights," "Business--Research Collaborations and Licensing
Agreements," "--Benefit Plans," "Limitation of Liability and
Indemnification Matters" and "Description of Capital Stock,"
to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by them and fairly summarizes in all
material respects the information called for with respect
thereto.
M. The Merger Agreement conforms in all material
respects to the description thereof contained in the
Prospectus.
N. The Merger has been duly authorized by all
requisite corporate action on the part of the Company and
RGene. On June 19, 1996, a duly authorized and executed
Certificate of Merger with respect to the Merger was filed
with the Secretary of State of the State of Delaware and on
such date the Merger became effective pursuant to the Delaware
General Corporation Law with the effect set forth in Section
259(a) thereof.
O. Such counsel does not know of any contracts or
documents required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the
Prospectus which are not so filed or described as required and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects.
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<PAGE> 32
To their knowledge, neither the Company nor its Subsidiary is
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting trust, voting agreement
or other instrument or agreement to which it is a party or by
which it or any of its properties may be bound, except for
defaults which neither individually nor in the aggregate are
material to the condition, financial or otherwise, of the
Company and its Subsidiary, taken as one enterprise.
P. The form of the agreements executed by the
Company's employees, consultants and other advisors respecting
trade secrets, confidentiality or intellectual property rights
is valid, binding and enforceable in accordance with its
express terms (it being understood that such counsel will
attach to such opinion a certificate executed by an
appropriate officer of the Company to the effect that the
Company uses all reasonable efforts to cause its employees,
consultants and other advisors to execute such agreements).
Q. The Company is the non-exclusive licensee of the
United States and foreign patents and patent applications
listed on Schedule I hereto and is the exclusive licensee of
the United States and foreign patents and patent applications
listed on Schedule II hereto. All such licenses are duly
executed, validly binding and enforceable in accordance with
their terms and, to the best of their knowledge, the Company
is not in default (declared or undeclared) of any material
provision of any such license.
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<PAGE> 33
R. No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the
Securities to the Underwriters, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws or such as may be required by the
NASD; and, to such counsel's knowledge, the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and the
compliance by the Company with its obligations hereunder will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its
Subsidiary pursuant to, any material contract, indenture,
mortgage, loan agreement, note, deed, trust, lease, sublease,
voting trust, voting agreement or other instrument or
agreement to which the Company or its Subsidiary is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or its Subsidiary is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or its
Subsidiary, or any applicable statute, law, rule, regulation,
ordinance, code, decision, directive or order.
S. To their knowledge, except as set forth in the
Prospectus, there are no legal or governmental proceedings,
pending or threatened, to which the Company or its Subsidiary
is a party or by which any property of the Company or its
Subsidiary is subject which are required to be disclosed in
the Registration Statement which could reasonably be expected
to have a material adverse effect on the business or
condition,
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financial or otherwise, of the Company and its Subsidiary
considered as one enterprise.
T. Except as described in the Prospectus, to their
knowledge, there are no persons with registration or other
similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the
Company under the 1933 Act.
U. The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
V. Based on the representations and warranties made
by the respective investors contained in each respective
purchase agreement and the responses (if any) of such
investors to the Company's inquiries and the facts and
circumstances contemplated by each respective purchase
agreement, and except that such counsel expresses no opinion
as to whether information provided to the investors was
sufficient and assuming that each offer and sale was a
discrete transaction and not integrated with any offer or sale
of securities by the Company, the sales of the Company's
Common Stock during the three years immediately before the
date hereof were at all relevant times duly registered or
exempt from registration under Section 5 of the 1933 Act.
W. Although they have made no independent
investigation, in the course of their representation of the
Company in connection with the offering of the Securities,
nothing has come to their attention that leads them to believe
that either the Company or its Subsidiary is not in
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<PAGE> 35
compliance with, or is not conducting its business in
conformity with, all applicable laws and regulations relating
to the operation of its business as described in the
Registration Statement, except to the extent that any failure
so to comply or conform would not have a material adverse
effect upon the business or condition, financial or otherwise,
of the Company and its Subsidiary considered as one
enterprise.
X. The Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus, and
any supplements thereto or the Term Sheet, pursuant to Rule
424(b) and if applicable, Rule 434, has been made in the
manner and within the time period required; and to their
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings therefor have been instituted or are pending or
contemplated under the 1933 Act.
In giving their opinions with respect to matters involving the
Merger required by subsection b(i) of this Section 8, Perkins Coie shall be
entitled to rely upon opinions of local counsel and certificates of officers of
the Company or its Subsidiary as to matters of fact.
(ii) The favorable opinion, dated as of the Closing Date, of
Morrison & Foerster LLP, patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
A. To the best of their knowledge, the statements set
forth on Schedule I hereto, which are contained in the
Prospectus under the captions "Risk Factors--Uncertainty of
Patent Position and Proprietary Rights; Access to Proprietary
Genes" and "--Patents
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<PAGE> 36
and Proprietary Rights" (the "Patent Paragraphs"), are
accurate and complete statements or summaries of the matters
set forth therein.
B. To the best of their knowledge, there are no
pending or threatened legal or governmental proceedings (other
than patent applications and the patent interference
proceeding described in the Prospectus) relating to patent
rights of the Company to which the Company is a party and, to
the best of their knowledge, no such proceedings are
threatened or contemplated.
C. Based solely upon the Officer's Certificate
attached as Exhibit A to this opinion (the "Officer's
Certificate") or except as specifically described in the
Prospectus, to the best of their knowledge, the Company is not
infringing or otherwise violating any patents of any persons
and, to the best of their knowledge, no person is infringing
or otherwise violating any of the Company's patents.
D. Based solely upon the Officer's Certificate, to
the best of their knowledge, the Company owns or possesses
sufficient licenses or other rights to use all patents
necessary to conduct the business now being conducted by the
Company as described in the Prospectus.
E. Assignment documents listing the Company as the
sole assignee of each of the patent applications listed on
Schedule II to this opinion (the "Solely Assigned
Applications") have been filed with the United States Patent
and Trademark Office (the "PTO"), and corresponding Notices of
Recordation of Assignment Documents have been received from
the PTO. Such counsel is
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not aware of any communications to the Company in which it is
alleged that the Company is not the sole assignee of the
Solely Assigned Applications. Assignment documents listing the
Company as an assignee of each of the patent applications
listed on Schedule III to this opinion (the "Jointly Assigned
Applications") have been filed with the PTO, and corresponding
Notices of Recordation of Assignment Documents have been
received from the PTO. Such counsel is not aware of any
communications to the Company in which it is alleged that the
Company is not an assignee of the Jointly Assigned
Applications.
F. Each of the United States patent applications
listed in Schedule IV to this opinion was prepared and filed
in a form sufficient to obtain a filing date and serial number
from the PTO.
G. To the best of their knowledge, each of the
foreign patent applications listed on Schedule IV hereto was
prepared and filed in a form sufficient to obtain a serial
number and filing date from the applicable foreign patent
office.
H. Each of the United States patent applications
listed as "Pending" in Schedule IV to this opinion is being
prosecuted in a manner sufficient to avoid abandonment of the
applications (other than an abandonment in favor of a
continuing application). To the best of their knowledge, each
of the foreign patent applications listed as "Pending" in
Schedule IV to this opinion is being prosecuted in a manner
sufficient to avoid abandonment.
I. Such counsel believes that it has complied with
its obligations to disclose
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<PAGE> 38
information material to patentability pursuant to 37 C.F.R.
1.56 in connection with the filing of the United States patent
applications listed on Schedule IV to this opinion.
In giving their opinions required by subsections (b)(ii) of
this Section 8, Morrison & Foerster LLP shall additionally state that nothing
has come to their attention that leads them to believe that the Patent
Paragraphs at the time the Registration Statement became effective contained an
untrue statement of a material fact with respect to patent rights of the Company
or omitted to state a material fact with respect to patent rights of the Company
required to be stated therein or necessary to make the statements therein not
misleading or that the Patent Paragraphs as of the date of the Prospectus or at
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact with respect to patent rights of the Company
or omitted to state a material fact with respect to patent rights of the Company
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The favorable opinion, dated as of the Closing Date, of
Morgan & Finnegan, L.L.P., patent counsel for RGene, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
A. To the best of their knowledge, the information in
the Prospectus under "Risk Factors--Uncertainty of Patent
Position and Proprietary Rights; Access to Proprietary Genes"
and "--Patents and Proprietary Rights," as it relates solely
to matters for which Morgan & Finnegan, L.L.P. is identified
under the column "LAW FIRM CONTACT DOCKET NO." as being
responsible in Schedule 2.11 and Schedule 2.14 (collectively,
the "Schedules") attached to that certain Merger Agreement,
dated as of April 16, 1996 (the "Merger Agreement"), by and
between Targeted Genetics Corporation, TGC Acquisition
Corporation and RGene Therapeutics, Inc., to the extent that
it constitutes matters of
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<PAGE> 39
law, summaries of legal matters, documents or proceedings, or
legal conclusions, has been reviewed by them and is correct in
all material respects and fairly and correctly presents the
information called for with respect thereto.
B. To the best of their knowledge, other than as set
forth in the Schedules, there are no pending or threatened
legal or governmental proceedings, nor allegations on the
part of any person of infringement, relating to patent rights
of RGene and, to the best of their knowledge, no such
proceedings are threatened or contemplated.
C. To the best of their knowledge, RGene is not
infringing or otherwise violating any patents, trade secrets,
trademarks, service marks, copyrights or other proprietary
information or know-how of any persons and, to the best of
their knowledge, no person is infringing or otherwise
violating any of RGene's patents, trade secrets, trademarks,
service marks, copyrights or other proprietary information or
know-how of RGene in a way in which could materially affect
the use thereof by RGene.
D. To the best of their knowledge, there are no
asserted or unasserted claims of any persons relating to the
scope or ownership of any of the patent applications listed on
Schedule I to this opinion (herein called the "Applications")
(which include all United States patent applications licensed
to RGene for which Morgan & Finnegan, L.L.P. is identified
under the column "LAW FIRM CONTACT DOCKET NO." as being
responsible on the Schedules), there are no liens which have
been filed against any of the Applications, there are no
material defects of form in the preparation or
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<PAGE> 40
filing of such Applications, the Applications are being
diligently prosecuted, and none of the Applications has been
finally rejected or abandoned.
E. To the best of their knowledge, there are no
asserted or unasserted claims of any persons relating to the
scope or ownership of any of the foreign patent applications
listed on Schedule II to this opinion (herein called the
"Foreign Applications") (which include all foreign patent
applications licensed to RGene for which Morgan & Finnegan,
L.L.P. is identified under the column "LAW FIRM CONTACT DOCKET
NO." as being responsible on the Schedules), there are no
liens which have been filed against any of the Foreign
Applications, there are no material defects of form in the
preparation or filing of such Foreign Applications, the
Foreign Applications are being diligently prosecuted, and none
of the Foreign Applications has been finally rejected or
abandoned.
F. Nothing has come to their attention that leads
them to believe that the Applications and the corresponding
Foreign Applications will not eventuate in issued patents, or
that any patents issued in respect of any such Applications or
Foreign Applications will not be valid or will not afford
RGene reasonable patent protection relative to the subject
matter thereof.
G. With respect to each of the licenses listed on
Schedule III to this opinion (which include all agreements
pursuant to which RGene licenses the patents and patent
application set forth on the Schedules), to the best of their
knowledge, RGene is not in default (declared or unde-
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<PAGE> 41
clared) of any material provision of any such license.
H. To the best of their knowledge, all pertinent
prior art references known to RGene or its counsel during the
prosecution of the Applications were disclosed to the United
States Patent and Trademark Office (the "PTO") and, to the
best of their knowledge, neither such counsel nor RGene made
any misrepresentation to, or concealed any material fact from,
the PTO during such prosecution.
In giving their opinions required by subsections (b)(iii) of
this Section 8, Morgan & Finnegan, L.L.P. shall additionally state that nothing
has come to their attention that leads them to believe that, with respect to
licenses, patents or other proprietary information or know-how owned or used by
RGene which are the subject of the foregoing opinions, the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of its date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by RGene for use in connection with
the offering of the Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective, in which
case at the time it is first provided to the Underwriters for such use) or at
the Closing Date or the Option Closing Date, as the case may be, included or
includes an 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.
For purposes of the opinion, "RGene" shall mean RGene
Therapeutics, Inc. and its successors and assigns, including through the Merger
of a wholly-owned subsidiary of the Company with and into RGene.
(iv) The favorable opinion, dated as of the Closing Date, of
the firm of Weiser & Associates, patent
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<PAGE> 42
counsel for the University of Tennessee Research Corporation ("UTRC")
with respect to patent rights in the DC cholesterol technology, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that:
A. To the best of its knowledge, the information in
the Prospectus under "Risk Factors--Uncertainty of Patent
Position and Proprietary Rights; Access to Proprietary Genes,"
"Business--Research Collaborations and Licensing Agreements"
and "--Patents and Proprietary Rights," as it relates solely
to UTRC's patent rights in the DC cholesterol technology, to
the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by it and is correct in all material
respects and does not include any untrue statement of a
material fact or omit to state a material fact with respect
thereto or necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading.
B. To the best of its 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 of UTRC, and, to the best of its
knowledge, no such proceedings are threatened or contemplated.
C. To the best of its knowledge, UTRC is not
infringing or otherwise violating any patents of any persons
and no such proceedings are threatened by others, and no
person is infringing or otherwise violating any of UTRC's
patents in a way in which could materially affect the use
thereof by UTRC.
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<PAGE> 43
D. UTRC is listed in the records of the United States
Patent and Trademark Office (the "PTO") as the sole assignee
of record of the patent related to the DC cholesterol
technology listed on Schedule I to this opinion (herein called
the "UTRC Patent") and each of the applications related to the
DC cholesterol technology listed on Schedule II to this
opinion (herein called the "UTRC Applications"). To the best
of its knowledge, there are no asserted claims of any persons
relating to the scope, except with respect to assertions
thereto submitted by one or more parties in the European, the
Japanese and the Australian patent applications which
circumstances are described in the Prospectus, or ownership of
the UTRC Patent or the UTRC Applications, there are no liens
which have been filed against the UTRC Patent or the UTRC
Applications, there are no material defects of form in the
preparation or filing of the UTRC Applications, the UTRC
Applications are being diligently prosecuted, and none of the
UTRC Applications has been finally rejected with no right to
further prosecute or has been abandoned. To the best of its
knowledge, the UTRC Patent is entitled to a statutory
presumption of validity under 35 USC 282 or the analogous
foreign law and, to the best of its knowledge, there is no
legal basis to rebut the statutory presumption of validity of
the UTRC Patent.
E. UTRC is listed in the records of the appropriate
foreign patent offices as the sole assignee of record of each
of each of the foreign applications related to the DC
cholesterol technology listed on Schedule III to this opinion
(herein called the "UTRC Foreign Applications"). To the best
of its knowledge, there are no asserted or unasserted claims
of any persons relating to
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<PAGE> 44
the scope, other than as described in paragraph D hereinabove,
or ownership of the UTRC Foreign Applications, there are no
liens which have been filed against any of the UTRC Foreign
Applications, there are no material defects of form in the
preparation or filing of the UTRC Foreign Applications, the
UTRC Foreign Applications are being diligently prosecuted, and
none of the UTRC Foreign Applications has been finally
rejected without right to further prosecute or abandoned.
F. Nothing has come to its attention, other than as
described in paragraph D hereinabove, that leads it to believe
that the UTRC Applications and the UTRC Foreign Applications
will not eventuate in issued patents, or that any patents
issued in respect of any such UTRC Applications or UTRC
Foreign Applications will not be valid or will not afford UTRC
reasonable patent protection relative to the subject matter
thereof.
G. To the best of its knowledge, all pertinent prior
art references known to UTRC or its counsel during the
prosecution of the UTRC Patents and the UTRC Applications were
disclosed to the PTO and other relevant patent offices and, to
the best of its knowledge, neither such counsel nor UTRC made
any misrepresentation to, or concealed any material fact from,
the PTO during such prosecution and, to the best of its
knowledge, all information submitted to the PTO and such other
relevant patent offices was accurate.
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<PAGE> 45
In giving its opinions required by subsections (b)(iv) of this
Section 8, Weiser & Associates shall additionally state that nothing has come to
its attention that leads it to believe that, with respect to patents or patent
applications owned or used by UTRC which are the subject of the foregoing
opinions, the Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters for use in
connection with the offering of the Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to the Underwriters
for such use) or at the Closing Date or the Option Closing Date, as the case may
be, included or includes an 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.
For purposes of the opinion, "UTRC" shall mean the University
of Tennessee Research Corporation and its successors and assigns.
(v) The favorable opinion, dated as of the Closing Date, of
the firm of Covington & Burling, regulatory counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to the
effect that:
A. The statements in the Registration Statement under
the captions "Risk Factors--Uncertainty of Governmental
Regulatory Requirements; Lengthy Approval Process" and
"Business--Governmental Regulation," to the best of such
counsel's knowledge and belief, are accurate and complete
statements or summaries of the United States Food and Drug
Administration matters 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
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<PAGE> 46
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.
B. Such counsel is not aware of any adverse legal or
governmental proceedings pending relating to products or
potential products of the Company, or any such proceedings
threatened or contemplated by governmental authorities or
others.
(vi) The favorable opinion, dated as of the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom, counsel for the Underwriters with
respect to the issuance and sale of the Securities, the Registration
Statement and the Prospectus and such other related matters as the
Underwriters shall reasonably request.
(vii) In giving their opinions required by subsections (b)(i)
and (b)(vi), respectively, of this Section 8, Perkins Coie and Skadden,
Arps, Slate, Meagher & Flom shall each additionally state that nothing
has come to their attention that leads them to believe that the
Registration Statement (except for financial statements and other
financial information included therein, as to which counsel need make
no statement), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for financial
statements and other financial information included therein, as to
which counsel need make no statement), as of its date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the
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<PAGE> 47
Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective, in which case
at the time it is first provided to the Underwriters for such use) or
at the Closing Date or the Option Closing Date, as the case may be,
included or includes an 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.
c. (i) There shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiary considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company in Section 6 hereof shall be true
and correct with the same force and effect as though expressly made at and as of
the Closing Date, except to the extent that any such representation or warranty
relates to a specific date, (iii) the Company shall have complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission and (v) the Representatives shall have received a certificate, dated
the Closing Date and signed by the President or any Vice President and the chief
financial or accounting officer of the Company to the effect set forth in
clauses (i), (ii), (iii) and (iv) above.
d. At the time of the execution of this Agreement, the
Underwriters shall have received from Ernst & Young LLP a letter dated such
date, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
47
<PAGE> 48
statements and certain financial information contained in the Registration
Statement and the Prospectus.
e. The Underwriters shall have received from Ernst & Young LLP
a letter, dated as of the Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Date.
f. The Securities shall have been approved for quotation on
NASDAQ.
g. In the event that the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company hereunder shall
be true and correct as of the Option Closing Date and, at the relevant Option
Closing Date, the Underwriters shall have received:
(1) A certificate, dated such Option Closing Date, of
the President or any Vice President of the Company and of the chief
financial or accounting officer of the Company confirming that the
certificate delivered at the Closing Date pursuant to Section 8 (c)
hereof remains true and correct as of such Option Closing Date.
(2) The favorable opinion of Perkins Coie, in form
and substance satisfactory to counsel for the Underwriters, dated such
Option Closing Date, relating to the Option Securities to be purchased
on such Option Closing Date and otherwise to the same effect as the
opinion required by Sections 8 (b)(i) and 8 (b)(vii) hereof.
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<PAGE> 49
(3) The favorable opinion of Morrison & Foerster,
LLP, in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date to the same effect as the
opinion required by Section 8(b)(ii) hereof.
(4) The favorable opinion of Morgan & Finnegan,
L.L.P., in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, to the same effect as the
opinion required by Section (b)(iii) hereof.
(5) The favorable opinion of Weiser & Associates, in
form and substance satisfactory to counsel for the Underwriters, dated
such Option Closing Date, to the same effect as the opinion required by
Section (b)(iv) hereof.
(6) The favorable opinion of Covington & Burling, in
form and substance satisfactory to counsel for the Underwriters, dated
such Option Closing Date, to the same effect as the opinion required by
Section (b)(v) hereof.
(7) The favorable opinion of Skadden, Arps, Slate,
Meagher & Flom, counsel for the Underwriters, dated such Option Closing
Date, relating to the Option Securities to be purchased on such Option
Closing Date and otherwise to the same effect as the opinion required
by Sections 8 (b)(vi) and 8 (b)(vii) hereof.
(8) A letter from Ernst & Young in form and substance
satisfactory to the Underwriters and dated such Option Closing Date,
substantially the same in form and substance as the letter furnished to
the Underwriters pursuant to Section 8(e) hereof, except that the
"specified date" in the letter furnished pursuant to
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<PAGE> 50
this Section 8(g)(8) shall be a date not more than three business days
prior to such Option Closing Date.
h. At the date of this Agreement, the Underwriters shall have
received lock-up agreements in form and substance satisfactory to the
Underwriters by the persons listed on Schedule B hereto.
i. Counsel for the Underwriters shall have been furnished
with such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy of any of the
representations or warranties or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the Underwriters.
j. The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
k. Any certificate or document signed by any officer of the
Company and delivered to you, as Representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
the Company to each Underwriter as to the statements made therein.
l. If any condition specified in this Section 8 shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or, in
the case of any condition to the purchase of Option Securities, on an Option
Closing Date which is after the Closing Date, the obligations of the several
Underwriters to purchase the relevant Option Securities, may be terminated by
the Representatives by notice to the Company at any time at or prior to Closing
Date or such an Option Closing Date as the case may be, and such termination
shall be without liability of any party to any other party except as provided in
Section 9 and except that Sections 6 and 7 shall survive any such termination
and remain in full force and effect.
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9. EXPENSES. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each preliminary prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight and charges for
counting and packaging) of such copies of the Registration Statement, each
preliminary prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp
taxes in connection with the original issuance and sale of the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, the preliminary
and supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the original issuance
and sale of the Securities; (v) the quotation of the Securities on NASDAQ; (vi)
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the reasonable fees
and expenses of counsel for the Underwriters incident to securing any required
review by the NASD; and (viii) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 or pursuant to clauses (ii), (iii), (iv) and (v)
of Section 11 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Company to
comply, in any material respect, with the terms or fulfill, in any material
respect, any of the conditions of this Agreement, the Company agrees to
reimburse the Representatives for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of
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<PAGE> 52
counsel for the Underwriters) incurred by you in connection herewith.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution and delivery hereof by or on behalf of the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Securities may commence,
when notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company.
If one or more of the Underwriters shall fail on the Closing Date to
purchase the Initial Securities which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does not exceed 10%
of the number of Initial Securities, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of the
number of Initial Securities, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
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<PAGE> 53
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. a. The Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Date
or Option Closing Date, as the case may be, (i) if there has been, since the
date of this Agreement or since the respective dates as of which information is
given in the Registration Statement, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiary considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if
there has occurred any change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which is such as to make it, in your judgement,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) if trading in the Common Stock has been
suspended by the Commission, or if trading generally on the American Stock
Exchange, the New York Stock Exchange or in the over-the-counter markets has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
markets or by order of the Commission or any other governmental authority, or if
a banking moratorium has been declared by either Federal, New York or Illinois
authorities, (iv) the enactment, publication, decree or other promulgation of
any Federal or state statute, regulation, rule or order of any court or other
governmental authority which in your judgement materially and adversely affects
or may materially or adversely affect the business or operations of the Company
and its Subsidiary or (v) the taking of any action by any Federal, state or
local
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<PAGE> 54
government or agency in respect of its monetary or fiscal affairs which in
your judgement has a material adverse effect on the securities markets in the
United States, and would in your judgement make it impracticable or inadvisable
to market the Securities or to enforce any contract for the sale thereof. Notice
of such termination may be given by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
b. If this Agreement is terminated pursuant to this Section
11, such termination shall be without liability of any party to any other party
except as provided in Section 9 and provided further that Sections 6 and 7 shall
survive such termination and remain in full force and effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the statements under the caption "Underwriting" in any
preliminary prospectus and in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 5(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company at the office of the
Company, at 1100 Olive Way, Suite 100, Seattle, Washington 98101, Attention: H.
Stewart Parker, President and Chief Executive Officer; or (ii) if to you, as
Representatives of the several Underwriters, care of Vector Securities
International, Inc., 1751 Lake Cook Road, Suite 350, Deerfield, Illinois 60015,
Attention: Syndicate Department.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be performed within the State of Illinois. This Agreement
may be signed in various counterparts which together constitute one and the same
instrument. If signed in counterparts, this Agreement shall not become effective
unless at least one counterpart hereof shall have been executed and delivered on
behalf of each party hereto.
15. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the several Underwriters, the Company,
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its directors and officers, the other persons referred to in Section 7 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Securities in his status as such purchaser.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
TARGETED GENETICS CORPORATION
By:
-----------------------
President and Chief
Executive Officer
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
VECTOR SECURITIES INTERNATIONAL, INC.
GENESIS MERCHANT GROUP SECURITIES
As Representatives of the Several Underwriters
By VECTOR SECURITIES INTERNATIONAL, INC.
By:
------------------------------
Vice President
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SCHEDULE I
TARGETED GENETICS CORPORATION
Number of Initial
Securities Purchased
Underwriter from the Company
- ----------- ----------------
Vector Securities
International, Inc. . . . . . . . . . . . . .
Genesis Merchant
Group Securities . . . . . . . . . . . . . . .
Total
----------------
57
<PAGE> 1
Exhibit 21.1
Subsidiaries
TGC Acquisition Corporation, a Delaware Corporation
