5,750,000 Shares CELL GENESYS, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
5,750,000 Shares
CELL GENESYS, INC.
Common Stock
September 7, 2006
Ladies and Gentlemen:
1. Introductory. Cell Genesys, Inc., a Delaware corporation (“Company”), agrees with you
(“Underwriter”) to issue and sell to the Underwriter 5,750,000 shares (“Firm Securities”) of its
common stock, $.001 par value per share (“Common Stock”), and also proposes to issue and sell to
the Underwriter, at the option of the Underwriter, an aggregate of not more than 862,500 additional
shares (“Optional Securities”) of its Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the “Offered Securities”.
2. Representations and Warranties of the Company. The Company represents and warrants to,
and agrees with, the Underwriter that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No. 333-102122),
including a related prospectus or prospectuses, covering the registration of the Offered
Securities under the Act, which registration statement has become effective. “Registration
Statement” at any particular time means such registration statement in the form then filed
with the Commission, including any amendment thereto, any document incorporated by reference
therein and all 430B Information or all 430C Information with respect to such registration
statement, that in any case has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of the Effective Date. For
purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
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For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of
the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of
the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of
the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable
Time” means 4:44 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Date” of the Registration Statement relating to the Offered Securities means the
time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price,
other 430B Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is intended for general distribution to prospective investors, as evidenced by its being so
specified in Schedule A to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433, relating to the Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”),
the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of “issuers” (as defined in ▇▇▇▇▇▇▇▇-▇▇▇▇▇)
promulgated or approved by the Public Company Accounting Oversight Board and, as applicable,
the rules of the New York Stock Exchange and The NASDAQ Stock Market (“Exchange Rules”).
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“Statutory Prospectus” with reference to any particular time means the prospectus relating
to the Offered Securities that is included in the Registration Statement immediately prior
to that time, including all 430B Information and all 430C Information with respect to the
Registration Statement. For purposes of the foregoing definition, 430B Information shall be
considered to be included in the Statutory Prospectus only as of the actual time that form
of prospectus (including a prospectus supplement) is filed with the Commission pursuant to
Rule 424(b) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the Registration
Statement initially became effective, (B) at the time of each amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment,
incorporated report or form of prospectus), (C) on the Effective Date relating to the
Offered Securities and (D) on the Closing Date, the Registration Statement conformed and
will conform in all material respects to the requirements of the Act and the Rules and
Regulations and did not and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) (A) on its date, (B) at the time of filing the Final
Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will
conform in all material respects to the requirements of the Act and the Rules and
Regulations, and will not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any such document based upon written information
furnished to the Company by the Underwriter, if any, specifically for use therein, it being
understood and agreed that the only such information is that described as such in Section
8(b) hereof.
(c) Shelf Registration Statement. The date of Agreement is not more than three years
subsequent to the more recent of the initial effective date of the Registration Statement or
December 1, 2005. If, immediately prior to the third anniversary of the more recent of the
initial effective date of the Registration Statement or December 1, 2005, any of the Offered
Securities remain unsold by the Underwriter, the Company will prior to that third
anniversary file, if it has not already done so, a new shelf registration statement relating
to the Offered Securities, in a form satisfactory to the Underwriter (, will use its best
efforts to cause such registration statement to be declared effective within 180 days after
that third anniversary, and will take all other action necessary or appropriate to permit
the public offering and sale of the Offered Securities to continue as contemplated in the
expired registration statement relating to the Offered Securities. References herein to the
Registration Statement shall include such new shelf registration statement.
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within
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the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date
of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405, including (x) the Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in Rule 405 and (y) the Company in
the preceding three years not having been the subject of a bankruptcy petition or insolvency
or similar proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the Securities, all as described in
Rule 405.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General Use
Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus supplement, dated September 7, 2006, together with the accompanying
prospectus (which is the most recent Statutory Prospectus distributed to investors
generally) and any other documents listed or disclosures stated in Schedule A to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and agreed that the only such
information furnished by the Underwriter consists of the information described as such in
Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Underwriter as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information then
contained in the Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
then contained in the Registration Statement or as a result of which such Issuer Free
Writing Prospectus, if republished immediately following such event or development, would
include an untrue statement of a material fact or omitted or would 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, (i) the Company has promptly notified or will
promptly notify the Underwriter and (ii) the Company has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus in reliance
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upon and in conformity with written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in Section 8(b)
hereof.
(g) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not materially and
adversely affect the Company or its businesses, properties, business prospects, conditions
(financial or other) or results of operations, taken as a whole (such effect is referred to
herein as a “Material Adverse Effect”).
(h) Subsidiaries. The Company has no subsidiary that is a “significant subsidiary” of
the Company within the meaning of Rule 1.01 of Regulation S-X of the Rules and Regulations.
(i) Capital Stock. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have been delivered and paid for
in accordance with this Agreement on the Closing Date, such Offered Securities will have
been validly issued, fully paid and nonassessable, will conform to the information in the
General Disclosure Package and to the description of such Offered Securities contained in
the Final Prospectus; the stockholders of the Company have no statutory or contractual
preemptive rights with respect to its Common Stock; none of the outstanding shares of
capital stock of the Company are or will have been issued in violation of any statutory or
contractual preemptive rights of any security holder; and the authorized equity
capitalization of the Company is as set forth in the General Disclosure Package.
(j) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there are
no contracts, agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment.
(k) Financial Statements. The financial statements and schedules included or
incorporated by reference in the Registration Statement and the General Disclosure Package
present fairly the financial condition of the Company and its consolidated subsidiaries as
of the respective dates thereof and the results of operations and cash flows of the Company
and its consolidated subsidiaries for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the General
Disclosure Package. No other financial statements or schedules of the Company
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are required by the Act, the Exchange Act, or the Rules and Regulations to be
included in the Registration Statement or the General Disclosure Package. Ernst & Young LLP
(“Accountants”), who have reported on such financial statements and schedules, are
independent accountants with respect to the Company as required by the Act and the Rules and
Regulations and Rule 3600T of the Public Company Accounting Oversight Board (“PCAOB”). The
summary and selected consolidated financial and statistical data included in the
Registration Statement present fairly the information shown therein and have been compiled
on a basis consistent with the audited financial statements presented in the Registration
Statement.
(l) Absence of Changes. Subsequent to the respective dates as of which information is
given in the Registration Statement and the General Disclosure Package and prior to or on
the Closing Date, except as set forth in or contemplated by the Registration Statement and
the General Disclosure Package, (i) there has not been and will not have been any change in
the capitalization of the Company (other than in connection with the grant or exercise of
options to purchase the Common Stock granted pursuant to the Company’s stock option plans
from the shares reserved therefor, the conversion of convertible debt outstanding on the
date hereof into shares of Common Stock or the issuance of shares under the Company’s
existing employee stock purchase plan as described in the Registration Statement), or any
Material Adverse Effect arising for any reason whatsoever, (ii) the Company has not incurred
and will not incur, except in the ordinary course of business as described in the General
Disclosure Package, any material liabilities or obligations, direct or contingent, the
Company has not entered into and will not enter into, except in the ordinary course of
business as described in the General Disclosure Package, any material transactions other
than pursuant to this Agreement and the transactions referred to herein and (iii) the
Company has not and will not have paid or declared any dividends or other distributions of
any kind on any class of its capital stock.
(m) Not An Investment Company. The Company is not, will not become as a result of the
transactions contemplated hereby, and will not conduct its business in a manner that would
cause it to become, an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) Litigation. Except as disclosed in the General Disclosure Package, there are no
actions, suits or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or against any of its officers in their capacity as such,
before or by any federal or state court, commission, regulatory body, administrative agency
or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or
finding would reasonably be expected to have a Material Adverse Effect.
(o) Absence of Existing Defaults and Conflicts. The Company is not (i) in violation
of any provision of its certificate of incorporation or bylaws, (ii) in default in any
respect, and
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no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject, or (iii) in violation in any respect
of any statute, law, rule, regulation, ordinance, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties, as applicable, except, with
respect to clauses (ii) and (iii), any violations or defaults which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
(p) Absence of Further Requirements. No consent, approval, authorization or order of,
or any filing or declaration with, any court or governmental agency or body is required for
the consummation by the Company of the transactions on its part contemplated herein, except
such as have been obtained under the Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the bylaws and rules of the National
Association of Securities Dealers, Inc. (“NASD”) in connection with the offering of the
Offered Securities.
(q) Authorization; Absence of Defaults and Conflicts Resulting from Transaction. The
Company has full corporate power and authority to enter into this Agreement. This Agreement
has been duly authorized, executed and delivered by the Company. The performance of this
Agreement and the consummation of the transactions contemplated hereby will not (i) result
in the creation or imposition of any lien, charge or encumbrance upon any of the assets of
the Company pursuant to the terms or provisions of, or result in a breach or violation of
any of the terms or provisions of, or conflict with or constitute a default under, or give
any party a right to terminate any of its obligations under, or result in the acceleration
of any obligation under, (A) the certificate of incorporation or bylaws of the Company, or
(B) any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company is a party or by which the Company or any of
its properties is bound or affected, except, in the case of clause (i)(B), any lien, breach,
violation, conflict, default or acceleration that, would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or (ii) violate or
conflict with any judgment, ruling, decree, order, statute, rule or regulation of any court
or other governmental agency or body applicable to the business or properties of the
Company.
(r) Title to Property. The Company has good and marketable title to all properties and
assets described in the General Disclosure Package as owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as are described in the General
Disclosure Package or are not material to the business of the Company. The Company
has valid, subsisting and enforceable leases for the properties described in the
General Disclosure Package as leased by it. The Company owns or leases all such properties
as
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are necessary to its operations as now conducted or as proposed to be conducted, except
where the failure to so own or lease would not reasonably be expected to have a Material
Adverse Effect.
(s) Off Balance Sheet Interests and Contracts. There is no document, contract, permit
or instrument, affiliate transaction or off-balance sheet transaction (including, without
limitation, any “variable interests” in “variable interest entities,” as such terms are
defined in Financial Accounting Standards Board Interpretation No. 46) of a character
required to be described in the Registration Statement or the General Disclosure Package or
to be filed as an Exhibit to the Registration Statement that is not described or filed as
required. All such contracts described in the immediately preceding sentence to which the
Company is a party have been duly authorized, executed and delivered by the Company,
constitute valid and binding agreements of the Company and are enforceable against and by
the Company in accordance with the terms thereof.
(t) Accuracy of Statements. No statement, representation, warranty or covenant made by
the Company in this Agreement or made in any certificate or document required by Section 7
of this Agreement to be delivered to the Underwriter was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
(u) Offering Material; Stabilization. The Company has not distributed, and will not
distribute prior to the Closing Date, any offering material in connection with the offering
and sale of the Shares other than any preliminary prospectuses, any Permitted Free Writing
Prospectus (as defined in Section 6 below), the Final Prospectus, the Registration Statement
and other materials, if any, permitted by the Act. Neither the Company nor any of its
directors, officers or controlling persons has taken, directly or indirectly, any action
designed, or that might reasonably be expected, to cause or result, under the Act or
otherwise, in, or that has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered Securities.
(v) Registration Rights. No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the Registration
Statement, which rights have not been waived by the holder thereof as of the date hereof.
(w) Listing. The Common Stock is registered under Section 12(g) of the Exchange Act
and the Offered Securities have been approved for listing on the NASDAQ Global Market,
subject to notice of issuance.
(x) Possession of Intellectual Property. Except as disclosed in or specifically
contemplated by the General Disclosure Package, (i) the Company owns or has adequate rights
to use all trademarks, trade names, domain names, patents, patent
rights, copyrights, technology, know-how (including trade secrets and other unpatented
or unpatentable proprietary or confidential information, systems or procedures), service
marks, trade dress rights, and other intellectual property (collectively, “Intellectual
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Property”) and has such other licenses, approvals and governmental authorizations, in each
case sufficient to conduct its business as now conducted and as now proposed to be
conducted, and to the Company’s knowledge, none of the foregoing Intellectual Property
rights owned or licensed by the Company is invalid or unenforceable, (ii) the Company has no
knowledge of any infringement by it of Intellectual Property rights of others, where such
infringement could reasonably be expected to have a Material Adverse Effect, (iii) the
Company is not aware of any infringement, misappropriation or violation by others of, or
conflict by others with rights of the Company with respect to, any Intellectual Property
that could reasonably be expected to have a Material Adverse Effect, (iv) there is no claim
being made against the Company or, to the best knowledge of the Company, any employee of the
Company, regarding Intellectual Property or other infringement that could reasonably be
expected to have a Material Adverse Effect, and (v) the Company has not received any notice
of infringement with respect to any patent or any notice challenging the validity, scope or
enforceability of any Intellectual Property owned by or licensed to the Company, in each
case the loss of which patent or Intellectual Property (or loss of rights thereto) would
have a Material Adverse Effect.
(y) Taxes. The Company has filed all federal, state, local and foreign income tax
returns that have been required to be filed and has paid all taxes and assessments received
by it to the extent that such taxes or assessments have become due. Except as disclosed in
the General Disclosure Package, the Company has no tax deficiency that has been or, to the
best knowledge of the Company, might be asserted or threatened against it that could
reasonably be expected to have a Material Adverse Effect.
(z) Permits and Licenses. The Company owns or possesses all authorizations, approvals,
orders, licenses, registrations, other certificates and permits of and from all governmental
regulatory officials and bodies, necessary to conduct its businesses as contemplated in the
General Disclosure Package, except where the failure to own or possess all such
authorizations, approvals, orders, licenses, registrations, other certificates and permits
would not reasonably be expected to have a Material Adverse Effect. There is no proceeding
pending or threatened (or any basis therefor known to the Company) that may cause any such
authorization, approval, order, license, registration, certificate or permit to be revoked,
withdrawn, cancelled, suspended or not renewed; and the Company is conducting its business
in compliance with all laws, rules and regulations applicable thereto, except where such
noncompliance would not reasonably be expected to have a Material Adverse Effect.
(aa) FCPA Compliance. The Company has not and, to the best of the Company’s knowledge,
none of its employees or agents at any time during the last five years have (i) made any
unlawful contribution to any candidate for foreign office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof.
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(bb) Internal Controls and Compliance With ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The books, records and
accounts of the Company accurately and fairly reflect in all material respects, in
reasonable detail, the transactions in, and dispositions of, the assets of, and the results
of operations of, the Company. The principal executive officer and principal financial
officer of the Company have made all certifications required by Sections 302 and 906 of
▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the rules and regulations promulgated in connection therewith with
respect to all reports, schedules, forms, statements and other documents required to be
filed by it with the Commission, and the statements contained in any such certification are
complete and correct. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in
▇▇▇▇▇▇▇▇-▇▇▇▇▇. The Company maintains (x) systems of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of the Company’s consolidated financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability, (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, and (y) disclosure controls and procedures (as defined in
Rule 13a-14(c) under the Exchange Act).
(cc) ERISA Compliance. The Company has fulfilled in all material respects its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published
interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA
and such regulations and published interpretations) in which employees of the Company are
eligible to participate and each such plan is in compliance in all material respects with
the presently applicable provisions of ERISA and such regulations and published
interpretations. No “prohibited transaction” (as defined in Section 406 of ERISA, or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the
“Code”)) has occurred with respect to any employee benefit plan which would reasonably be
expected to result in a Material Adverse Effect.
(dd) Labor Issues. No labor problem or dispute with the employees of the Company
exists or, to the Company’s knowledge, is threatened or imminent, which would reasonably be
expected to result in a Material Adverse Effect. The Company is not aware that any key
employee or significant group of employees of the Company plans to terminate employment with
the Company.
(ee) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference in the Registration Statement, a
Statutory Prospectus or the General Disclosure Package are based on or derived from
sources that the Company believes to be reliable and accurate.
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(ff) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement and the General Disclosure Package has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
(gg) Environmental Laws. The Company (i) is in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders relating to
the protection of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) has
received and is in compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct its business; and (iii) has not received
notice of any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in the case of subsections (i), (ii) and (iii) of this subsection (gg) as would not,
individually or in the aggregate, have a Material Adverse Effect.
(hh) Regulatory Authorizations. The Company possesses all certificates, authorizations
and permits issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business as described in the General Disclosure Package, including
without limitation all such certificates, authorizations and permits required by the United
States Food and Drug Administration (the “FDA”) or any other federal, state or foreign
agencies or bodies engaged in the regulation of pharmaceuticals or biohazardous materials,
except where the failure to possess such certificates, authorizations and permits would not,
individually or in the aggregate, have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, if the subject of an unfavorable decision,
ruling or finding, would individually or in the aggregate have a Material Adverse Effect.
(ii) Conduct of Clinical Trials. The studies, tests and preclinical and clinical
trials conducted by or on behalf of the Company that are described in the General Disclosure
Package were and, if still pending, are being conducted in compliance with all applicable
current Good Laboratory Practices and Good Clinical Practices in all material respects. The
descriptions of the studies, tests and preclinical and clinical trials, including the
related results and regulatory status, contained in the General Disclosure Package are
accurate in all material respects. Except as described in the General Disclosure Package,
the Company has not received any notices, correspondence or other communication from the FDA
or other governmental agency requiring the termination or suspension of any clinical trials
conducted by, or on behalf of, the Company or in which the Company has participated.
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(jj) Business of Subsidiaries. Except as disclosed in the General Disclosure Package,
none of the Company’s subsidiaries owns any assets, has any liabilities or conducts any
business.
(kk) Exemption From NASD Filing. As of the date of this Agreement and the date of the
Registration Statement, the Company satisfies the eligibility requirements in existence
prior to October 21, 1992 for the use of a registration statement on Form S-3 for the
offering of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of $4.40 per share, the Firm Securities.
The Company will deliver the Firm Securities to the Underwriter in a form reasonably
acceptable to the Underwriter against payment of the purchase price by the Underwriter in Federal
(same day) funds by official bank check or checks or wire transfer to an account at a bank
acceptable to the Underwriter drawn to the order of the Company at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, San Francisco, California, at 10:00 A.M., New York
time, on September 13, 2006, or at such other time not later than seven full business days
thereafter as the Underwriter and the Company determine, such time being herein referred to as the
“First Closing Date”. For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered Securities sold pursuant
to the offering. The Firm Securities so to be delivered or evidence of their issuance will be made
available for checking at the above office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional
Corporation, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Underwriter given to the Company from time to time
not more than 30 days subsequent to the date of the Final Prospectus, the Underwriter may purchase
all or less than all of the Optional Securities at the purchase price per Security to be paid for
the Firm Securities. The Company agrees to sell to the Underwriter the number of shares of Optional
Securities specified in such notice and the Underwriter agrees to purchase such Optional
Securities. Such Optional Securities may be purchased by the Underwriter only for the purpose of
covering over-allotments made in connection with the sale of the Firm Securities. No Optional
Securities shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not previously exercised may
be surrendered and terminated at any time upon notice by the Underwriter to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Underwriter but shall be not later than five full business days after
12
written
notice of election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to or as instructed by the
Underwriter in a form reasonably acceptable to the Underwriter against payment of the purchase
price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Underwriter drawn to the order of the Company, at the above
office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation. The Optional
Securities being purchased on each Optional Closing Date or evidence of their issuance will be made
available for checking at the above office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional
Corporation at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter proposes to offer the
Offered Securities for sale to the public as set forth in the General Disclosure Package.
5. Certain Agreements of the Company. The Company agrees with the Underwriter that it will
furnish to counsel for the Underwriter one copy of the registration statement relating to the
Offered Securities, including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with the offering of Offered Securities:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule
424(b)(2) (or, if applicable and consented to by the Underwriter, subparagraph (5)) not
later than the second business day following the earlier of the date it is first used or the
date of this Agreement. The Company has complied and will comply with Rule 433.
(b) Filing of Amendments; Response to Commission Requests. The Company will promptly
advise the Underwriter of any proposal to amend or supplement the Registration Statement or
any Statutory Prospectus at any time and will afford the Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement; and the Company will
also advise the Underwriter promptly of (i) the filing of any such amendment or supplement,
(ii) any request by the Commission or its staff for any amendment to the Registration
Statement, for any supplement to any Statutory Prospectus or for any additional information,
(iii) the institution by the Commission of any stop order proceedings in respect of the
Registration Statement or the threatening of any proceeding for that purpose, and (iv) the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Offered Securities in any jurisdiction or the institution or
threatening of any proceedings for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such qualification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 under the Act
would be) required to be delivered under the Act in connection with sales by any Underwriter
or dealer, any event occurs as a result of which the Final Prospectus as then amended or
13
supplemented would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Final Prospectus to comply with the Act, the
Company will promptly notify the Underwriter of such event and will promptly prepare and
file with the Commission and furnish, at its own expense, to the Underwriter and the dealers
and any other dealers upon request of the Underwriter, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such compliance.
Neither the Underwriter’s consent to, nor the Underwriter’s delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement
and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Underwriter copies of
the Registration Statement, including all exhibits, any Statutory Prospectus relating to the
Offered Securities, the Final Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the Underwriter
reasonably requests. The Company will pay the expenses of printing and distributing to the
Underwriter all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Underwriter
designates and will continue such qualifications in effect so long as required for the
distribution; provided that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such jurisdiction or
take any action that would subject it to taxation in any such jurisdiction where it is not
then so subject.
(g) Reporting Requirements. During the period of five years after the date of the
this Agreement, the Company will furnish to the Underwriter as soon as practicable after the
end of each fiscal year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Underwriter (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission under the Exchange
Act or mailed to stockholders, and (ii) from time to time, such other information concerning
the Company as the Underwriter may reasonably request. However, so long as the Company is
subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange
Act and is timely filing reports with the Commission on its Electronic Data Gathering,
Analysis and Retrieval system (“▇▇▇▇▇”), it is not required to furnish such reports or
statements to the Underwriter.
14
(h) Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including but not limited to any filing
fees and other expenses (including fees and disbursements of counsel to the Underwriter)
incurred in connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as the Underwriter may designate and the preparation and printing of
memoranda relating thereto, for any costs and expenses related to, the review by the
National Association of Securities Dealers, Inc. of the Offered Securities (including filing
fees and the fees and expenses of counsel for the Underwriter relating to such review), any
travel expenses of the Company’s officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective purchasers of the
Offered Securities, fees and expenses incident to listing the Offered Securities on The
NASDAQ Stock Market and other national and foreign exchanges, fees and expenses in
connection with the registration of the Offered Securities under the Exchange Act, and
expenses incurred in distributing any Statutory Prospectuses and the Final Prospectus
(including any amendments and supplements thereto) to the Underwriter and for expenses
incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors.
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with any offering of Offered Securities in the manner described in the “Use of Proceeds”
section of the General Disclosure Package and, except as disclosed in the General Disclosure
Package, the Company does not intend to use any of the proceeds from the sale of the Offered
Securities hereunder to repay any outstanding debt owed to any affiliate of the Underwriter.
(j) Absence of Manipulation. The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause or
result in, stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities. For the period specified below (the “Lock-Up
Period”), the Company will not, directly or indirectly, take any of the following actions
with respect to its Common Stock or any securities convertible into or exchangeable or
exercisable for its Common Stock (“Lock-Up Securities”): (i) offer, sell, issue, contract to
sell, pledge or otherwise dispose of, Lock-Up Securities, (ii) offer, sell, issue, contract
to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up
Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole
or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or
increase a put equivalent position or liquidate or decrease a call equivalent position in
Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the
Commission a registration statement under the Act relating to Lock-Up Securities, or
publicly disclose the intention to take any such action, without the prior written consent
of the Underwriter, except issuances of Lock-Up Securities pursuant to the
conversion of convertible securities or the exercise of warrants or
15
options, in each case
outstanding on the date of this Agreement, grants of employee stock options pursuant to the
terms of a plan in effect on the date of this Agreement, or issuances of Lock-Up Securities
pursuant to the exercise of such options. The initial Lock-Up Period will commence on the
date hereof and continue for 90 days after the date of the commencement of the public
offering of the Offered Securities or such earlier date that the Underwriter consents to in
writing; provided, however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period beginning
on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date of release of the
earnings results or the occurrence of the materials news or material event, as applicable,
unless the Underwriter waives, in writing, such extension. The Company will provide the
Underwriter with notice of any announcement described in clause (2) of the preceding
sentence that gives rise to an extension of the Lock-Up Period.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains
the prior consent of the Company, it has not made and will not make any offer relating to the
Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the Underwriter is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it
has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely
Commission filing where required, legending and record keeping.
7. Conditions of the Obligations of the Underwriter. The obligations of the Underwriter to
purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to
be purchased on each Optional Closing Date will be subject to the accuracy of the representations
and warranties of the Company herein (as though made on such Closing Date), to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Underwriter shall have received letters, dated,
respectively, the date hereof and each Closing Date, of Ernst & Young LLP confirming that
they are a registered public accounting firm and independent public accountants within the
meaning of the Securities Laws and substantially in the form of Schedule B hereto (except
that, in any letter dated the Closing Date, the specified date referred to in Schedule B
hereto shall be a date no more than three days prior to the Closing Date).
16
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or the Underwriter, shall be contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as a
whole which, in the judgment of the Underwriter, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g)), or any public announcement
that any such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating) or any
announcement that the Company has been placed on negative outlook; (iii) any change in U.S.
or international financial, political or economic conditions or currency exchange rates or
exchange controls, the effect of which is such as to make it, in the judgment of the
Underwriter, impractical to market or to enforce contracts for the sale of the Offered
Securities, whether in the primary market or in respect of dealings in the secondary market;
(iv) any suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum or maximum prices for trading on such
exchange; (v) or any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal
or New York authorities; (vii) any major disruption of settlements of securities, payment,
or clearance services in the United States or any other country where such securities are
listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the Underwriter, the effect of
any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to
make it impractical or inadvisable to market the Offered Securities or to enforce contracts
for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Underwriter shall have received an
opinion, dated such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional
Corporation, counsel for the Company, to the effect set forth in Exhibit A attached hereto.
(e) Opinion of Counsel for the Company. The Underwriter shall have received an
opinion, dated such Closing Date, of DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ LLP, counsel for the
Company, to the effect set forth in Exhibit B attached hereto.
17
(f) Opinion of Counsel for the Company. The Underwriter shall have received an
opinion, dated such Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, counsel for the Company, to the
effect set forth in Exhibit C attached hereto.
(g) Opinion of Counsel for the Underwriter. The Underwriter shall have received from
Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions,
dated such Closing Date, with respect to such matters as the Underwriter may require, and
the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) Officer’s Certificate. The Underwriter shall have received a certificate, dated
the Closing Date, of an executive officer of the Company and a principal financial or
accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date in all material respects;
no stop order suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been instituted or, to the
best of their knowledge and after reasonable investigation, are contemplated by the
Commission; and subsequent to the date of the most recent financial statements in the
General Disclosure Package, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole except as set forth in the General Disclosure Package or as
described in such certificate.
(g) Lock-up Agreements. On or prior to the date hereof, the Underwriter shall have
received lockup letters from each of the executive officers and directors of the Company.
The Company will furnish the Underwriter with such conformed copies of such opinions, certificates,
letters and documents as the Underwriter may reasonably request. The Underwriter may in its sole
discretion waive compliance with any conditions to the obligations of the Underwriter under this
Agreement.
8. Indemnification and Contribution. (a) Indemnification of Underwriter. The Company will
indemnify and hold harmless the Underwriter, its partners, members, directors, officers, employees,
agents, affiliates and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any
and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party
may become subject, under the Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any part of the Registration Statement at any time, any
18
Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and will reimburse each
Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a
party thereto), whether threatened or commenced, and in connection with the enforcement of this
provision with respect to any of the above as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by the Underwriter consists of
the information described as such in subsection (b) below.
(b) Indemnification of Company. The Underwriter will severally and not jointly indemnify and
hold harmless the Company, each of its directors and each of its officers who signs the
Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”),
against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may
become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any part of the Registration Statement at any time, any Statutory
Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out
of or are based upon the omission or the alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating
or defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of the following information
in the Statutory Prospectus at the Applicable Time and the Final Prospectus: the information
contained in the ninth paragraph under the caption “Underwriting”.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
19
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other from the offering of the Offered Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Underwriter on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriter on the other 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 Underwriter. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriter and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this subsection (d).
20
Notwithstanding the provisions of this subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Company
and the Underwriter agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section 8(d).
(e) Control Persons. The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Underwriter within the meaning of the Act; and
the obligations of the Underwriter under this Section shall be in addition to any liability which
the Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed the Registration Statement
and to each person, if any, who controls the Company within the meaning of the Act.
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriter, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Offered
Securities. If the purchase of the Offered Securities by the Underwriter is not consummated for
any reason, the Company will reimburse the Underwriter for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by the Underwriter in connection with the
offering of the Offered Securities, and the respective obligations of the Company and the
Underwriter pursuant to Section 8 hereof shall remain in effect. In addition, if any Offered
Securities have been purchased under this Agreement, the representations and warranties in Section
2 hereof and all obligations under Section 5 hereof shall also remain in effect.
10. Notices. All communications hereunder will be in writing and, if sent to the
Underwriter, will be mailed, delivered or telegraphed and confirmed to them at Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: LCD-IBD or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Chief Financial Officer.
11. Successors. This Agreement will inure to the benefit of and be binding upon parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
21
12. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
13. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Underwriter has been retained solely to act as underwriter in
connection with the sale of Offered Securities and that no fiduciary, advisory or agency
relationship between the Company and the Underwriter has been created in respect of any of the
transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the
Underwriter has advised or is advising the Company on other matters;
(b) Arm’s-Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriter and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Underwriter and
its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and that the Underwriter has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may
have against the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty and
agrees that the Underwriter shall have no liability (whether direct or indirect) to the Company in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf
of or in right of the Company, including stockholders, employees or creditors of the Company.
14. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated thereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated thereby in Federal and state
courts in the Borough of Manhattan in The City of New York and
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
such suit or proceeding in any such court has been brought in an inconvenient forum.
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If the foregoing is in accordance with the Underwriter’s understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the Underwriter in accordance with its terms.
| Very truly yours, | ||||||||||
| Cell Genesys, Inc. | ||||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. | |||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. | |||||||||
| Title: | Chairman and Chief Executive Officer | |||||||||
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
Credit Suisse Securities (USA) LLC
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Managing Director |
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