EXHIBIT 10.58
TARGETED GENETICS CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made as of the
31st day of December, 2004, by and among Targeted Genetics Corporation, a
Washington corporation (the "COMPANY"), and the investors severally and not
jointly listed on Schedule A hereto, each of which is herein referred to as an
"INVESTOR."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK.
(a) On or prior to the Closing (as defined below), the Company
shall have authorized the sale and issuance to the Investors of an aggregate of
3,954,132 shares of the Company's common stock, $.01 par value (the "COMMON
STOCK") at a purchase price of $1.5174 per share.
(b) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally and not jointly, to purchase at the Closing and the
Company agrees to sell and issue to each Investor at the Closing, that number of
shares of the Company's Common Stock set forth opposite such Investor's name on
Schedule A hereto for the purchase price set forth thereon (the "STOCK").
1.2 CLOSING. The purchase and sale of the Stock shall take place at the
offices of Orrick, Herrington & Sutcliffe, LLP located at 405 Howard Street, San
Francisco, California at 10:00 A.M., on December 31, 2004, or at such other time
and place as the Company and the Investors may mutually agree upon orally or in
writing (which time and place are designated as the "CLOSING"). At the Closing,
the Company shall deliver to each Investor a certificate representing the Stock
that such Investor is purchasing against payment of the purchase price therefor
by cashier's check or wire transfer.
1.3 ANCILLARY AGREEMENTS. Immediately prior to the Closing, the Company
and Celladon Corporation ("CELLADON") shall have entered into a collaboration
agreement and a manufacturing and supply agreement (the "ANCILLARY AGREEMENTS").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Investor that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and has filed
with the Securities and Exchange Commission (the "COMMISSION") two registration
statements on such Form (Registration File No. 333-107822 and No. 333-116600),
which became effective as of August 21, 2003 and July 7, 2004, respectively, for
the registration under the Securities Act of the Stock.
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Such registration statements meet the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and comply with said Rule. The Company
will file with the Commission pursuant to Rule 424(b) under the Securities Act,
and the rules and regulations (the "RULES AND REGULATIONS") of the Commission
promulgated thereunder, supplements to the forms of prospectus included in such
registration statements relating to the offer to sell and proposed sale of the
Stock and the plan of distribution thereof. Such registration statements,
including the exhibits thereto, as amended at the date of this Agreement, are
hereinafter called the "REGISTRATION STATEMENT"; such prospectuses in the form
in which they appear in the Registration Statement are hereinafter called the
"BASE PROSPECTUS"; and the supplemented form of prospectuses, in the forms in
which they will be filed with the Commission pursuant to Rule 424(b) (including
the Base Prospectuses as so supplemented) are hereinafter called a "PROSPECTUS
SUPPLEMENT." Any reference herein to the Registration Statement, the Base
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein (the "INCORPORATED DOCUMENTS")
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), on or before the date of this
Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "described," "set forth" or
"stated" in the Registration Statement, the Base Prospectus or the Prospectus
Supplement (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement,
the Base Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of
the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the
Company's knowledge, is threatened by the Commission.
(b) The Registration Statement (and any further documents to be
filed with the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations and did not and, as amended or supplemented, if applicable, 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 Base Prospectus and the Prospectus Supplement, each as of
its respective date, comply in all material respects with the Securities Act and
the Exchange Act and the applicable Rules and Regulations. Each of the Base
Prospectus and the Prospectus Supplement, as amended or supplemented, did not
and will not contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the
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requirements of the Exchange Act and the applicable Rules and Regulations and
none of such Incorporated Documents, when they were filed with the Commission,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Base Prospectus or Prospectus Supplement,
when such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the applicable Rules and
Regulations, as applicable and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company makes no representations
or warranties as to information, if any, contained in or omitted from the
Prospectus Supplement or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of any Investor specifically for use in the Registration Statement
or the Prospectus Supplement, which information the parties hereto agree is
limited to the Investors' Information as defined in Section 8.1. No
post-effective amendment to the Registration Statement reflecting any facts or
events arising after the date thereof which represent, individually or in the
aggregate, a fundamental change in the information set forth therein is required
to be filed with the Commission. There are no documents required to be filed
with the Commission in connection with the transaction contemplated hereby that
have not been filed as required pursuant to the Securities Act or will not be
filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, which have not been described or filed as required.
(c) The Company has delivered, or will as promptly as practicable
deliver, to the Investors complete conformed copies of the Registration
Statement and of each consent and certificate of experts filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits)
and the Base Prospectus and the Prospectus Supplement, as amended or
supplemented, in such quantities and at such places as the Investors reasonably
request. Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Stock other
than the Base Prospectus, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
(d) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations or other legal entities in
good standing (or the equivalent thereof, if any) under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
are in good standing (or the equivalent thereof, if any) as foreign corporations
in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to
be so qualified and in good standing or have such power or authority would not
have, singularly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT").
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(e) The Stock to be issued and sold by the Company hereunder has
been duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable, free of any preemptive or similar rights, and free and clear of
any Liens (as defined below), other than any Liens created by or imposed upon
the Investors through no action of the Company. The Stock conforms to the
description thereof contained in the Base Prospectus and the Prospectus
Supplement. The issuance and sale of the Stock hereunder does not require
stockholder approval, including without limitation pursuant to the Nasdaq
SmallCap Marketplace Rules. The Company has not, prior to the date hereof, made
any offer or sale of any securities which could be "integrated" for purposes of
the Securities Act or the Rules and Regulations with the offer and sale of the
Stock hereunder.
(f) The Company has an authorized capitalization as set forth in
the Base Prospectus and the Prospectus Supplement, all of the issued and
outstanding shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, have been issued in
compliance with federal and state securities laws, and conform to the
description thereof contained in the Base Prospectus and the Prospectus
Supplement. None of the outstanding shares of Common Stock was issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its subsidiaries that have been granted by the Company other than those
accurately described in the Base Prospectus and the Prospectus Supplement (other
than with respect to subsequent option grants and share issuances pursuant to
reservations, agreements or employee benefit plans referred to in the Base
Prospectus or any Prospectus Supplement or pursuant to the exercise of
convertible securities, including options and warrants referenced in the Base
Prospectus or any Prospectus Supplement). The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and the options or
other rights granted thereunder, as described in the Base Prospectus and the
Prospectus Supplement accurately and fairly present the information required to
be shown with respect to such plans, arrangements, options and rights (other
than with respect to subsequent option grants and share issuances pursuant to
reservations, agreements or employee benefit plans referred to in the Base
Prospectus or any Prospectus Supplement or pursuant to the exercise of
convertible securities, including options and warrants referenced in the Base
Prospectus or any Prospectus Supplement).
(g) All the outstanding shares of capital stock of each subsidiary
of the Company have been duly authorized and validly issued, are fully paid and
non-assessable and, except to the extent set forth in the Base Prospectus and
the Prospectus Supplement, are owned by the Company directly or indirectly
through one or more wholly-owned subsidiaries, free and clear of any claim,
lien, encumbrance, security interest, defect or restriction upon voting or
transfer or any other claim of any kind ("LIENS").
(h) The Company has the full right, power and authority to enter
into this Agreement and to perform and to discharge its obligations hereunder;
and this Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a valid and
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binding obligation of the Company enforceable in accordance with its terms,
except as limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless
of whether asserted in a proceeding at equity or law.
(i) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions result in any
violation of any statute, law, rule or regulation or any judgment, order or
decree of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets, except
in each case, for such conflicts, breaches, violations or defaults that would
not reasonably be expected to, singularly or in the aggregate, have a Material
Adverse Effect, nor will such actions result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries.
(j) There is no franchise, contract, lease, instrument or other
document of a character required by the Securities Act or the Rules and
Regulations to be described in the Base Prospectus and the Prospectus
Supplement, or to be filed as an exhibit to the Registration Statement, which is
not described or filed as required; and all statements summarizing any such
franchises, contracts, leases, instruments or other documents or legal matters
contained in the Registration Statement are accurate and complete in all
material respects. Other than as described in the Base Prospectus and the
Prospectus Supplement, no such franchise, contract, lease, instrument or other
document has been suspended or terminated for convenience or default by the
Company or any of the other parties thereto, and the Company has not received
notice or any other knowledge of any such pending or threatened suspension or
termination, except for such pending or threatened suspensions or terminations
that would not reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(k) All existing minute books of the Company and each of its
subsidiaries, including all existing records of all meetings and actions of the
board of directors (including Audit, Compensation and Nominating and Corporate
Governance Committees) and stockholders of the Company through the date of the
latest meeting and action (collectively, the "CORPORATE RECORDS") have been made
available to the Investors and counsel for the Investors. All such Corporate
Records are complete and accurately reflect, in all material respects, all
transactions referred to in such Corporate Records.
(l) No consent, approval, authorization, filing with or order of
or registration with, any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as have been
obtained or made under the Securities Act or the Exchange Act and such as may be
required under the securities, or blue sky, laws of any jurisdiction in
connection with the offer and sale of the Stock by the Company in the manner
contemplated herein and in the Base Prospectus and the Prospectus Supplement,
except for such
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consents, approvals, authorizations, filings or orders or registrations that
would not reasonably be expected to, singularly or in the aggregate, have a
Material Adverse Effect.
(m) Except as described in the Base Prospectus and the Prospectus
Supplement, no person or entity has the right to require registration of shares
of Common Stock or other securities of the Company because of the filing or
effectiveness of the Registration Statement or otherwise, except for persons and
entities who have expressly waived such right or who have been given timely and
proper notice and have failed to exercise such right within the time or times
required under the terms and conditions of such right, and the Company is not
required to file any registration statement for the registration of any
securities of any person or register any such securities pursuant to any other
registration statement filed by the Company under the Securities Act for a
period of at least 90 days after the date hereof.
(n) The financial statements, together with the related notes and
schedules, of the Company included in the Base Prospectus, the Prospectus
Supplement or the Registration Statement, or incorporated by reference therein,
as the case may be, present fairly the financial condition, results of
operations and cash flows of the Company and its consolidated subsidiaries as of
the dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and the Rules and Regulations
thereunder and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise stated therein and subject, in the case of
unaudited financial statements, to the absence of footnotes and normal year-end
adjustments). No other financial statements or supporting schedules or exhibits
are required by the Securities Act or the Rules and Regulations thereunder to be
included in the Base Prospectus, the Prospectus Supplement or the Registration
Statement, or incorporated by reference therein, as the case may be.
(o) Except as set forth in the Base Prospectus and the Prospectus
Supplement, there is no legal or governmental proceeding pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which singularly or in
the aggregate, if determined adversely to the Company or any of its
subsidiaries, might have a Material Adverse Effect or would prevent or adversely
affect the ability of the Company to perform its obligations under this
Agreement; and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
(p) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise
use, all items of real or personal property which are material to the business
of the Company and its subsidiaries taken as a whole, in each case free and
clear of all Liens that may result in a Material Adverse Effect.
(q) The Company has established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such
disclosure controls and procedures to ensure that material information relating
to the Company
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and its subsidiaries is made known to the certifying officers by others within
those entities, particularly during the period in which the Company's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is
being prepared. The Company's certifying officers have evaluated the
effectiveness of the Company's disclosure controls and procedures as of the end
of the quarter ended September 30, 2004 (such date, the "EVALUATION DATE"). The
Company presented in its Form 10-Q for the quarter ended September 30, 2004 the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant adverse changes in the
Company's internal control over financial reporting (as such term is defined in
Exchange Act Rules 13a-15 and 15d-15) or, to the Company's knowledge, in other
factors that could significantly affect the Company's internal controls in an
adverse manner. The Company's auditors and the audit committee of the board of
directors of the Company (or persons fulfilling the equivalent function) are not
aware of (i) any material weakness in the design or operation of internal
controls which could adversely affect the Company's ability to record, process,
summarize and report financial data; (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in the
Company's internal controls.
(r) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance 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 consolidated financial statements in conformity with
generally accepted accounting principles and to maintain accountability of
consolidated 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.
(s) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the Base
Prospectus, the Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, any material loss or
interference with its business from fire, explosion, flood, terrorist act or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth in
or contemplated by the Base Prospectus and the Prospectus Supplement; and, since
such date, there has not been any change in the capital stock (other than with
respect to subsequent option grants and share issuances pursuant to
reservations, agreements or employee benefit plans referred to in the Base
Prospectus or any Prospectus Supplement or pursuant to the exercise of
convertible securities, including options and warrants referenced in the Base
Prospectus or any Prospectus Supplement) or long-term debt of the Company or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, general affairs, management,
financial position, stockholders' equity, results of operations or prospects of
the Company, otherwise than as set forth or contemplated by the Base Prospectus
and the Prospectus Supplement.
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3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor hereby
represents and warrants to the Company, severally and not jointly, that:
(a) (i) Such Investor has full right, power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (ii) this Agreement constitutes a valid and
binding obligation of such Investor enforceable against such Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of such Investor herein may be
legally unenforceable.
(b) (i) Such Investor has answered all questions on the Signature
Page for use in preparation of the Prospectus Supplement and the answers thereto
are true and correct as of the date hereof and will be true and correct as of
the Closing Date, and (ii) such Investor, in connection with its decision to
purchase the number of shares of Stock set forth on Schedule A, relied only upon
the Base Prospectus, the Prospectus Supplement, the documents incorporated
therein by reference, and any representations and warranties of the Company
contained herein.
(c) Such Investor acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction outside the United States
by the Company that would permit an offering of the Stock, or possession or
distribution of offering materials in connection with the issue of the Stock in
any jurisdiction outside the United States where action for that purpose is
required.
(d) Such Investor understands that nothing in this Agreement or
any other materials presented to such Investor in connection with the purchase
and sale of the Stock constitutes legal, tax or investment advice. Such Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Stock.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the Investors:
(a) (i) For so long as the delivery of a prospectus is required in
connection with the offering or sale of the Stock, to advise the Investors
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus Supplement or any amended Prospectus Supplement has been filed
and to furnish the Investors with copies thereof; (ii) to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 15 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus Supplement and for so long
as the delivery of a prospectus is required in connection with the offering or
sale of the Stock; (iii) to advise the Investors, promptly after it receives
notices thereof, (x) of any request by the Commission to amend the Registration
Statement or to amend or supplement the Prospectus Supplement or for
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additional information and (y) of the issuance by the Commission, of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or any order directed at any Incorporated
Document or any amendment or supplement thereto or any order preventing or
suspending the use of the Base Prospectus or the Prospectus Supplement or any
amendment or supplement thereto, of the suspension of the qualification of the
Stock for offering or sale in any jurisdiction, of the institution or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus Supplement or for additional information; and (iv) in the event of
the issuance of any stop order or of any order preventing or suspending the use
of the Base Prospectus or Prospectus Supplement or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such
order.
(b) To deliver promptly to the Investors such number of the
following documents as the Investors shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits), (ii) the Base
Prospectus, (iii) the Prospectus Supplement and any amendment or supplement
thereto; and (iv) any document incorporated by reference in the Base Prospectus
or Prospectus Supplement. The Company will pay the expenses of printing or other
production of all documents relating to the Offering.
(c) Prior to the Closing Date, not to issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the past
practices of the Company), without the prior consent of the Investors, unless in
the judgment of the Company such press release or communication is required by
law.
(d) To reserve no less than $2,000,000 of the net proceeds from
the sale of the Stock for use in funding the Company's activities under the
Ancillary Agreements, as more fully set forth therein, and otherwise to apply
the net proceeds from the sale of the Stock as set forth in the Prospectus
Supplement under the heading "Use of Proceeds."
(e) To comply in all material respects with all applicable
securities and other applicable laws, rules and regulations, including, without
limitation, the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated thereunder (the "SARBANES-OXLEY ACT"), and use its best efforts to
cause the Company's directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes-Oxley Act.
(f) To engage and maintain, at its expense, a registrar and
transfer agent for the Stock.
(g) To not take any action prior to the Closing Date which would
require the Prospectus Supplement to be amended or supplemented pursuant to
Section 4(b).
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(h) To use its commercially reasonable efforts to ensure that the
Stock is quoted on the Nasdaq SmallCap Market at the Closing Date.
5. CONDITIONS OF THE INVESTORS' OBLIGATIONS AT CLOSING. The respective
obligations of the Investors, and the closing of the sale of the Stock hereunder
are subject to the accuracy, when made and on the Closing Date, of the
representations and warranties on the part of the Company contained herein, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been initiated or threatened by the Commission, and any request for additional
information on the part of the Commission (to be included in the Registration
Statement, the Base Prospectus or the Prospectus Supplement or otherwise) shall
have been complied with to the reasonable satisfaction of the Investors. Any
filings required to be made by the Company in accordance with Section 4(a) shall
have been timely filed with the Commission.
(b) All corporate proceedings and other legal matters incident to
the authorization, form, execution, delivery and validity of each of this
Agreement, the Stock, the Registration Statement, the Base Prospectus and the
Prospectus Supplement and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Investors, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(c) The Investors shall have received from Orrick, Herrington &
Sutcliffe LLP, counsel for the Company, such counsel's written opinion,
addressed to the Investors and dated as of the Closing Date, in form and
substance reasonably satisfactory to the Investors as set forth in Exhibit 1
attached hereto.
(d) The Company shall have furnished to the Investors a
certificate, dated as of the Closing Date, executed by its Chief Executive
Officer and its Chief Financial Officer stating that (i) such officers have
examined the Registration Statement, the Base Prospectus and the Prospectus
Supplement and, in their opinion, the Registration Statement (including the Base
Prospectus) as of its effective date and the Prospectus Supplement, as of each
such effective date, did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) since the effective date of
the Registration Statement no event has occurred which should have been but was
not set forth in a supplement or amendment to the Registration Statement, the
Base Prospectus or the Prospectus Supplement, (iii) to their knowledge, as of
the Closing Date, the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied with all agreements
and covenants contained in this Agreement and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date,
(iv) subsequent to the date of the most recent financial statements included or
incorporated by reference in the Base Prospectus and the Prospectus Supplement
and other than as result of
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planned operations of the Company, there has been no change in the financial
position or results of operation of the Company and its subsidiaries that would
have a Material Adverse Effect, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole, except as set forth in the Base Prospectus and the Prospectus
Supplement, (v) the Registration Statement became effective on August 21, 2003
and July 7, 2004, respectively, and to their knowledge, as of the Closing Date
(I) no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been commenced or are
pending before or are contemplated by the Commission and (II) no action has been
taken by any governmental agency, body or official, and no injunction,
restraining order or order of any nature by any federal or state court has been
issued, which would prevent the issuance of the Stock.
(e) The Stock shall have been listed and admitted and authorized for
trading on the Nasdaq SmallCap Market, and satisfactory evidence of such actions
shall have been provided to the Investors.
(f) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Stock or materially and adversely affect or potentially
and adversely affect the business or operations of the Company; and no
injunction, restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Stock or materially and
adversely affect or potentially and adversely affect the business or operations
of the Company.
(g) The Company shall have prepared and will file with the
Commission a Current Report on Form 8-K with respect to the Offering, including
as an exhibit thereto this Agreement and any other documents relating thereto.
(h) The Company shall have entered into the Ancillary Agreements
with Celladon and such agreements shall be in full force and effect.
(i) Prior to the Closing Date, the Company shall have furnished to
the Investors such further information, certificates and documents as the
Investors may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Investors.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of the
Company to each Investor under this Agreement are subject to the fulfillment on
or before the Closing of each of the following conditions by that Investor:
11
(a) The representations and warranties of such Investor contained
in Section 3 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing.
(b) Such Investor shall have delivered the purchase price
specified in Section 1.1(a) and set forth opposite such Investor's name on
Schedule A hereto.
(c) All authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
(d) Celladon shall have entered into the Ancillary Agreements with
the Company and such agreements shall be in full force and effect.
(e) Prior to the Closing Date, the Investors shall have furnished
to the Company such further information, certificates and documents as the
Company may reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Investor,
its officers, employees, representatives and agents and each person, if any, who
controls such Investor within the meaning of the Securities Act (collectively
the "INVESTOR INDEMNIFIED PARTIES" and each a "INVESTOR INDEMNIFIED PARTY")
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which that Investor Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Base Prospectus,
the Registration Statement or the Prospectus Supplement or in any amendment or
supplement thereto, (ii) the omission or alleged omission to state in the Base
Prospectus, the Registration Statement or the Prospectus Supplement or in any
amendment or supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any breach of
the representations and warranties of the Company contained herein and shall
reimburse each Investor Indemnified Party promptly upon demand for any legal or
other expenses reasonably incurred by that Investor Indemnified Party in
connection with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from the Base Prospectus, the Registration Statement or the Prospectus
Supplement or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Investor specifically for use therein, which information the parties hereto
agree is limited to the Investors' Information (as defined in Section 8.1);
provided, however, that the foregoing indemnification agreement with respect to
the Base Prospectus shall not inure to the benefit of any Investor from
12
whom the person asserting any such loss, claim, damage or liability purchased
securities, or any officers, employees, representatives, agents or controlling
persons of such Investor, if (i) a copy of the Prospectus Supplement (as then
amended or supplemented) was required by law to be delivered to such person at
or prior to the written confirmation of the sale of securities to such person,
(ii) a copy of the Prospectus (as then amended or supplemented), excluding
documents incorporated by reference therein, was not sent or given to such
person by or on behalf of such Investor and such failure was not due to
non-compliance by the Company with Section 4(b), and (iii) the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability. This indemnity agreement is not exclusive and will
be in addition to any liability, which the Company might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to each Investor Indemnified Party.
(b) Each Investor, severally and not jointly, shall indemnify and
hold harmless the Company, its officers, employees, representatives and agents,
each of its directors and each person, if any, who controls the Company within
the meaning of the Securities Act (collectively the "COMPANY INDEMNIFIED
PARTIES" and each a "COMPANY INDEMNIFIED PARTY") against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which the
Company Indemnified Parties may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Base Prospectus, the Registration Statement or
the Prospectus Supplement or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the 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 or on behalf of
that Investor specifically for use therein, and shall reimburse the Company
Indemnified Parties for any legal or other expenses reasonably incurred by such
parties in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided that
the parties hereto hereby agree that such written information provided by the
Investors consists solely of the Investors' Information. This indemnity
agreement is not exclusive and will be in addition to any liability, which the
Investors and the Purchasers might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to the Company
Indemnified Parties. Notwithstanding the provisions of this Section 7(b), in no
event shall any indemnity by any Investor under this Section 7(b) exceed the
total purchase price paid by such Investor for such Investor's Stock, as set
forth opposite such Investor's name on Schedule A hereto.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not
13
relieve it from any liability which it may have under this Section 7 except to
the extent it has been materially prejudiced by such failure; and, provided,
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such action in
accordance with the terms hereof and employ counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Investors, if the
indemnified parties under this Section 7 consist of any Investor Indemnified
Party, or by the Company if the indemnified parties under this Section 7 consist
of any Company Indemnified Parties. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 7(a) and 7(b) shall use best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any settlement,
compromise or consent to the entry of judgment in connection with any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action (other than a judgment
entered with the consent of such indemnified party), the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Investors on the other
from the offering of the Stock 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
14
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Investors on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Investors on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company bears
to the total compensation received by the Investors with respect to the Stock
purchased under this Agreement. 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 on the one hand or the Investors
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission; provided that the parties hereto agree that the written information
furnished to the Company by the Investors for use in the Prospectus Supplement
consists solely of the Investors' Information. The Company and the Investors
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Investors to contribute are several in proportion to their
respective obligations and not joint. Notwithstanding the provisions of this
Section 7(d), in no event shall any Investor be required to contribute under
this Section 7(d) any amount in excess of the total purchase price paid by such
Investor for such Investor's Stock, as set forth opposite such Investor's name
on Schedule A hereto, less the amount of any damages which such Investor has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission.
8. MISCELLANEOUS.
8.1 INVESTORS' INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Investors' Information consists
solely of the statements concerning the Investors contained in the first two
paragraphs under the heading "Plan of Distribution" in the Prospectus
Supplement.
8.2 SURVIVAL OF WARRANTIES, INDEMNITIES, REPRESENTATIONS. The
representations and warranties of the Company and Investors contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing for a period of six months and shall not be affected
by any investigation made by or on behalf of the Investors, the Company or any
person controlling any of them. The indemnities and covenants of the Company and
Investors contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing indefinitely.
15
8.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
8.4 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8.5 COUNTERPARTS; FACSIMILE. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be as effective as original signatures.
8.6 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.7 NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
8.8 FINDER'S FEE. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless each Investor from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
8.9 EXPENSES. The Company agrees with the Investors to pay (a) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Stock to the Investors; (b) the costs incident to the Registration of the Stock
under the Securities Act; (c) the costs incident to the preparation, printing
and distribution of the Registration Statement, Base Prospectus and Prospectus
Supplement and any amendments and exhibits thereto or any document incorporated
by reference therein, and the costs of printing, reproducing and distributing,
this Agreement by mail, telex or other means of communication; (d) any
applicable listing or other fees; (e) all fees and expenses of the registrar and
transfer agent of the Stock; and (f) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement
(including, without limitation, the fees and expenses of the Company's counsel,
but not the fees and expenses of counsel to the Investors).
16
8.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Investors.
8.11 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.12 ENTIRE AGREEMENT. This Agreement, the Ancillary Agreements and the
other documents referred to herein and therein constitute the entire agreement
among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein.
8.13 EXCULPATION AMONG INVESTORS. Each Investor acknowledges that it is
not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Investor agrees that no Investor nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Investor shall be liable to any other Investor for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
Stock.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TARGETED GENETICS CORPORATION
By: /s/ H. Stewart Parker
-------------------------
H. Stewart Parker
President & CEO
Address: 1100 Olive Way, Suite 100
Seattle, WA 98101
18
INVESTORS:
ENTERPRISE PARTNERS V, L.P.
By: Enterprise Management Partners V, LLC
as General Partner
Signature: /s/ Andrew E. Senyei, M.D.
-------------------------------
Print Name: Andrew E. Senyei, M.D.
Title: Managing Director
ENTERPRISE PARTNERS VI, L.P.
By: Enterprise Management Partners VI, LLC
as General Partner
Signature: /s/ Andrew E. Senyei, M.D.
-------------------------------
Print Name: Andrew E. Senyei, M.D.
Title: Managing Director
Address: 2223 Avenue de la Playa, Suite 300
La Jolla, CA 92037-3218
Attn: Andrew E. Senyei, M.D.
19
INVESTORS:
VENROCK PARTNERS, L.P.
By: Venrock Partners Management, LLC
Its: General Partner
Signature:/s/ Anthony B. Evnin
---------------------------
Name: Anthony B. Evnin
Title: Member
VENROCK ASSOCIATES IV, L.P.
By: Venrock Management IV, LLC
Its: General Partner
Signature:/s/ Anthony B. Evnin
---------------------------
Name: Anthony B. Evnin
Title: Member
VENROCK ENTREPRENEURS FUND IV, L.P.
By: VEF Management IV, LLC
Its: General Partner
Signature:/s/ Anthony B. Evnin
---------------------------
Name:
Title:
Address: 30 Rockefeller Plaza, Room 5508
New York, NY 10112
Attn: Anthony B. Evnin
20
SCHEDULE A
SCHEDULE OF INVESTORS
NUMBER OF
SHARES TOTAL PURCHASE
NAME AND ADDRESS PURCHASED PRICE OF SHARES
- ----------------------------------------- --------- ---------------
ENTERPRISE PARTNERS V, L.P. 1,087,386 $1,649,999.52
ENTERPRISE PARTNERS VI, L.P. 1,087,386 $1,649,999.52
VENROCK PARTNERS, L.P. 295,374 $ 448,200.51
VENROCK ASSOCIATES IV, L.P. 1,448,399 $2,197,800.64
VENROCK ENTREPRENEURS FUND IV, L.P. 35,587 53,999.71
TOTALS: 3,954,132 $5,999,999.90
21