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EXHIBIT 1.1
November 10, 2000
Mr. Daniel J. Schreiber
Granite Financial Group, Inc..
12230 El Camino Real, suite 220
San Diego, CA 92130
Dear Dan:
As we have discussed, Avigen intends to sell shares of its common stock, at a
purchase price equal to the closing price per share of Avigen common stock as
quoted on the Nasdaq National Market System on November 10, 2000, to purchasers
for which Granite Financial Group, Inc has acted as placement agent. The closing
of this sale is scheduled to occur on November 16, 2000. As full consideration
for the services of Granite Financial Group, Inc to Avigen in connection with
this offer and sale of its common stock, Avigen agrees to pay Granite Financial
Group, Inc, within ten business days of closing of this sale, a commission of
3.00% (Three percent) of the aggregate purchase price of the shares actually
sold to, and confirmed wire-transfers have been received from, investors who
have designated the commission attributable to their investment should be paid
to Granite Financial Group, Inc. Purchasers will confirm this amount by their
written designation on the Stock Purchase Agreement. Avigen reserves the right,
in its sole discretion, to determine which investors will be allowed to
participate in this offering and at what dollar amount. This agreement applies
only to the transaction scheduled to close as referred to above.
Granite Financial Group, Inc recognizes and agrees that Granite Financial Group,
Inc will be named as placement agent on the prospectus supplement cover and in
the "Plan of Distribution" section of the prospectus supplement to be filed with
the Securities and Exchange Commission and distributed to the purchasers with
respect to this offer and sale.
If you are in agreement with the above, please execute a copy of this letter and
fax it to me at (510) 748-7286.
Sincerely,
Thomas J. Paulson
Chief Financial Officer
ACCEPTED AND AGREED:
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Granite Financial Group, Inc.
Mr. Daniel J. Schreiber
President
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Avigen, Inc.
November 13, 2000
INDEMNIFICATION AGREEMENT
BETWEEN AVIGEN, INC. AND GRANITE FINANCIAL GROUP, INC.,
COVERING SHELF REGISTRATION NO. 333-47680
Avigen, Inc. ("the Company") agrees to indemnify and hold harmless Granite
Financial Group, Inc. and its affiliates and their respective directors,
officers, employees, agents and controlling persons (each such person, including
Granite Financial Group, Inc., an "Indemnified Party") from and against any
losses, claims, damages and liabilities, joint or several (collectively, the
"Damages"), to which such Indemnified Party may become subject in connection
with or otherwise relating to or arising from (i) any transaction contemplated
by this letter agreement or the engagement of or performance of services by an
Indemnified Party thereunder or (ii) an untrue statement or an alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact necessary in order to make a statement not misleading in light of
the circumstances under which it was made, and will reimburse each Indemnified
Party for all fees and expenses (including the reasonable fees and expenses of
counsel) (collectively, "Expenses") as incurred in connection with
investigating, preparing, pursuing or defending any threatened or pending claim,
action, proceeding or investigation (collectively, the "Proceedings") arising
therefrom, whether or not such Indemnified Party is a formal party to such
Proceeding; provided, that the Company will not be liable to any such
Indemnified Party to the extent that any Damages are found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Indemnified Party seeking
indemnification hereunder. The Company also agrees that no Indemnified Party
will have any liability (whether direct or indirect, in contract, tort or
otherwise) to the Company or any person asserting claims on behalf of the
Company arising out of or in connection with any transactions contemplated by
this letter agreement or the engagement of or performance of services by any
Indemnified Party thereunder except to the extent that any Damages are found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Indemnified
Party.
If for any reason other than in accordance with this letter agreement, the
foregoing indemnity is unavailable to an Indemnified Party or insufficient to
hold an Indemnified Party harmless, then the Company will contribute to the
amount paid or payable by an Indemnified Party as a result of such Damages
(including all Expenses incurred) in such proportion as is appropriate to
reflect the relative benefits to the Company and/or its stockholders on the one
hand, and Granite Financial Group, Inc. on the other hand, in connection with
the matters covered by this letter agreement or, if the foregoing allocation is
not permitted by applicable law, not only such relative benefits but also the
relative faults of such parties as well as any relevant equitable
considerations. The Company agrees that for purposes of this paragraph the
relative benefits to the Company and/or its stockholders and Granite Financial
Group, Inc. in connection with the matters covered by this letter agreement will
be deemed to be in the same proportion that the total value paid or received or
to be paid or received by the Company and/or its stockholders in connection with
the transactions contemplated by this letter agreement, whether or not
consummated, bears to the fees paid to Granite Financial Group, Inc. under this
letter agreement; provided, that in no event will the total contribution of all
Indemnified Parties to all such Damages exceed the amount of fees actually
received and retained by Granite Financial Group, Inc. hereunder (excluding any
amounts received by Granite Financial Group, Inc. as reimbursement of expenses).
The Company agrees not to enter into any waiver, release or settlement of any
Proceeding (whether or not Granite Financial Group, Inc. or any other
Indemnified Party is a formal party to such Proceeding) in respect of which
indemnification may be sought hereunder without the prior written consent of
Granite Financial Group, Inc. (which consent will not be unreasonably withheld),
unless such waiver, release or settlement includes an unconditional release of
Granite Financial Group, Inc. and each Indemnified Party from all liability
arising out of such Proceeding.
The indemnity, reimbursement and contribution obligations of the Company
hereunder will be in addition to any liability which the Company may otherwise
have to any Indemnified Party and will be binding upon and inure to the benefit
of any successors, assigns, heirs and personal representatives of the Company or
an Indemnified Party. The provisions of this Annex will survive the
modification, termination or expiration of the letter agreement.
