EXHIBIT 10.30
GENENTECH, INC.
$500,000,000, 4.40% Senior Notes due 2010
$1,000,000,000, 4.75% Senior Notes due 2015
$500,000,000, 5.25% Senior Notes due 2035
Purchase Agreement
July 13, 2005
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
As Representatives of the Initial Purchasers
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York, New York 10013
Ladies and Gentlemen:
Genentech,
Inc., a corporation organized under the laws of Delaware (the
"Company"), proposes to issue and sell to the several parties named
in Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, $500,000,000
aggregate principal amount of its 4.40% Senior Notes due 2010 (the
"2010 Notes"), $1,000,000,000 aggregate principal amount of its
4.75% Senior Notes due 2015 (the "2015 Notes") and $500,000,000
aggregate principal amount of its 5.25% Senior Notes due 2035 (the
"2035 Notes," and together with the 2010 Notes and the 2035 Notes,
the "Securities"). The Securities are to be issued under an
indenture, to be dated as of the Closing Date, between the Company
and The Bank of New York Trust Company, N.A., as trustee (the
"Trustee"), as supplemented by an Officers' Certificate to be dated
as of the Closing Date (as supplemented, the "Indenture"). Holders
of the Securities will have the benefit of a registration rights
agreement (the "Registration Rights Agreement"), to be dated as of
the Closing Date, between the Company and the Initial Purchasers,
pursuant to which the Company will agree to register the Securities
under the Act subject to the terms and conditions therein
specified. To the extent there are no additional parties listed on
Schedule I other than you, the term Representatives as used herein
shall mean you as the Initial Purchasers, and the terms
Representatives and Initial Purchasers shall mean either the
singular or plural as the context requires. The use of the neuter
in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 18
hereof.
The
sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance
upon exemptions from the registration requirements of the
Act.
In
connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated July 13, 2005 (as
amended or supplemented at the date thereof, including any and all
exhibits thereto and any information incorporated by reference
therein, the "Preliminary Memorandum"), and a final offering
memorandum, dated July 13, 2005 (as amended or supplemented at the
Execution Time, including any and all exhibits thereto and any
information incorporated by reference therein at the Execution
Time, the "Final Memorandum"). Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain information concerning
the Company and the Securities. The Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Final
Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial
Purchasers. Unless stated to the contrary, any references herein to
the terms "amend," "amendment" or "supplement" with respect to the
Final Memorandum shall be deemed
to refer to and include any
information filed under the Exchange Act subsequent to the
Execution Time that is incorporated by reference
therein.
1.
Representations and Warranties . The Company represents and
warrants to each Initial Purchaser as set forth below in this
Section 1.
(a) The
Preliminary Memorandum, at the date thereof, did not contain any
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. At the
Execution Time and on the Closing Date, the Final Memorandum did
not and will not (and any amendment or supplement thereto, at the
date thereof and at the Closing Date will not) contain any 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;
provided , however , that the Company makes no
representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or
any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by
or on behalf of the Initial Purchasers through the Representatives
specifically for inclusion therein.
(b) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3)
under the Act.
(c) No
registration under the Act of any of the Securities is required for
the offer and sale of the Securities to or by the Initial
Purchasers in the manner contemplated herein and in the Final
Memorandum, including as a result of any general advertising or
solicitation (within the meaning of Regulation D) or any violation
of the offering restrictions of Regulation S.
(d) The
Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Final Memorandum will not be, an "investment
company" as defined in the Investment Company Act.
(e) The
Company is subject to and in full compliance with the reporting
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(f) The
Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
the Company (except as contemplated in this Agreement).
(g) The
Company has not taken, directly or indirectly, any action designed
to or that has constituted or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the
Securities.
(h) Each
of the Company and its significant subsidiaries as defined under
Rule 1-02(w) of Regulation S-X (the "Material Subsidiaries") has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Final Memorandum, and is
duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction that requires
such qualification, except in each case where the failure to so
qualify or to be in good standing would not have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a "Material
Adverse Effect").
(i) All
the outstanding shares of capital stock of each Material Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Memorandum, all outstanding shares of capital stock of such
Material Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any security
interest, claim, lien or encumbrance.
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(j) The
statements in the Final Memorandum under the headings "Description
of Notes," "Exchange Offer; Registration Rights" fairly summarize
the matters therein described.
(k) This
Agreement has been duly authorized, executed and delivered by the
Company; the Indenture has been duly authorized and, assuming due
authorization, execution and delivery thereof by the Trustee, when
executed and delivered by the Company on the Closing Date, will
constitute a legal, valid, binding instrument enforceable against
the Company in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity); the Securities have been duly
authorized, and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers, will have been duly executed and delivered
by the Company on the Closing Date and will constitute the legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); and the Registration Rights
Agreement has been duly authorized by the Company and, when
executed and delivered by the Company on the Closing Date, will
constitute the legal, valid, binding and enforceable instrument of
the Company (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws affecting creditors' rights
generally from time to time in effect, to general principles of
equity and as rights to indemnification and contribution may be
limited by relevant law and public policy), provided that no
representation is made with respect to Section 8
thereof.
(l) No
consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, in the Indenture or in the
Registration Rights Agreement, except as such agreements expressly
require, or such as may be required under the blue sky laws of any
jurisdiction in which the Securities are offered and sold and, in
the case of the Registration Rights Agreement, such as will be
obtained under the Act and the Trust Indenture Act.
(m) None
of the execution and delivery of the Indenture, this Agreement or
the Registration Rights Agreement, the issuance and sale of the
Securities, or the consummation of any other of the transactions
herein or therein contemplated will conflict with, result in a
breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its Material Subsidiaries pursuant to, (i) the charter or by-laws
of the Company or any of its Material Subsidiaries; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its Material Subsidiaries is a party or bound or to which its or
their property is subject; (iii) any applicable law; or (iv) any
judgment, order or decree of any governmental body, agency or
court, arbitrator or other authority having jurisdiction over the
Company or any of its Material Subsidiaries or any of its or their
properties, except in the case of (ii), (iii) or (iv), such as
would not have a Material Adverse Effect.
(n) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements incorporated by
reference in the Final Memorandum any material loss or interference
with its business from fire, explosion, flood 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 or contemplated in the Final Memorandum; and, since the
respective dates as of which information is given in the Final
Memorandum, there has not been any material change in the common
stock or increase in long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Final
Memorandum.
(o) The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Final Memorandum present fairly the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of Regulation S-X and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein).
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(p) No
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its Material Subsidiaries is pending or, to the knowledge
of the Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this
Agreement, the Indenture or the Registration Rights Agreement, or
the consummation of any of the transactions contemplated hereby or
thereby or (ii) could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Final
Memorandum.
(q) Neither
the Company nor any of its material subsidiaries (as to (i) and all
subsidiaries as to (ii) and (iii)) is in violation or default of
(i) any provision of its charter or bylaws; (ii) the terms 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 bound
or to which its property is subject; (iii) any applicable law; or
(iv) any judgment, order or decree of any governmental body, agency
or court, arbitrator or other authority having jurisdiction over
the Company or any of its Material Subsidiaries or any of its or
their properties, except in the case of (ii), (iii) or (iv), as
would not cause a Material Adverse Effect or as set forth in the
Final Memorandum.
(r) Ernst
& Young LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial
statements and schedules included or incorporated by reference in
the Final Memorandum, are independent public accountants with
respect to the Company within the meaning of the Act.
(s) The
Company has filed all non-U.S., U.S. federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not have a Material Adverse Effect and except as set forth in or
contemplated in the Final Memorandum).
(t) The
Company and each of its Material Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor
any of its subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect except as set forth
in or contemplated in the Final Memorandum.
(u) No
Material Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
in the Final Memorandum or as would not materially interfere with
the Company's ability to satisfy its obligations under the
Indenture and the Securities.
(v) The
Company and each of its Material Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate U.S. federal, state or non-U.S. regulatory authorities
necessary to conduct their respective businesses, and neither the
Company nor any of its Material Subsidiaries has 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 have a
Material Adverse Effect, except as set forth in or contemplated in
the Final Memorandum.
(w) The
Company and its subsidiaries on a consolidated basis maintain 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 financial statements in conformity 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.
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(x) Such
system of internal controls over financial reporting were evaluated
for effectiveness and were effective as of December 31, 2004 and
since such evaluation, there have been no significant changes in
the system of internal controls over financial reporting or in
other systems, processes or otherwise that could materially
adversely affect the system of internal controls over financial
reporting.
(y) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) of the Exchange Act) that have been
designed to ensure that material information relating to the
Company and its consolidated subsidiaries is made known to the
Company's principal executive officer and principal financial
officer by others within those entities; such disclosure controls
and procedures were effective in all material respects to perform
the functions for which they were established as of the end of the
quarter ended March 31, 2005 and, as of the date hereof, the
Company is not aware of any material weaknesses in such disclosure
controls and procedures.
(z) The
Company and its subsidiaries are (i) in compliance with any and all
applicable non-U.S., U.S. federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"); (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) have not received
notice of any actual or potential liability under any Environmental
Law, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals,
or liability would not have a Material Adverse Effect, except as
set forth in or contemplated in the Final Memorandum. Except as set
forth in the Final Memorandum, neither the Company nor any of its
subsidiaries is currently named as a "potentially responsible
party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(aa) The
Company has no "significant subsidiaries" (as defined in Rule l-02
of Regulation S-X under the Act).
(bb) The
Company has not taken any action or omitted to take any action
(such as issuing any press release relating to any Securities
without an appropriate legend) which may result in the loss by any
of the Initial Purchasers of the ability to rely on any
stabilization safe harbor provided by the Financial Services
Authority under the Financial Services and Markets Act 2000 (the
"FSMA"). The Company has been informed of the guidance relating to
stabilization provided by the Financial Services Authority, in
particular in Section MAR 2 Annex 2G of the Financial Services
Handbook.
(cc) The
Company and its subsidiaries own, possess, license or have other
rights to use on reasonable terms, all patents, trade and service
marks, trade names, copyrights, domain names (in each case
including all registrations and applications to register same),
inventions, trade secrets, technology, know-how, and other
intellectual property necessary for the conduct of the Company's
business (collectively, the "Intellectual Property") as now
conducted or as proposed in the Final Memorandum to be conducted.
Except as set forth in the Final Memorandum, (i) the Company owns,
or has rights to use under license, all such Intellectual Property
free and clear in all respects of all adverse claims, liens or
other encumbrances; (ii) to the knowledge of the Company, there is
no infringement by third parties of any such Intellectual Property;
(iii) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by any third party
challenging the Company's or its Material Subsidiaries' rights in
or to any such Intellectual Property, and the Company is unaware of
any facts which would form a reasonable basis for any such claim;
(iv) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by any third party challenging
the validity, scope or enforceability of any such Intellectual
Property, and the Company is unaware of any facts that would form a
reasonable basis for any such claim; (v) there is no pending or, to
the Company's knowledge, threatened action, suit, proceeding or
claim by any third party that the Company or any subsidiary
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of any third party, and
the Company is unaware of any other fact which would form a
reasonable basis for any such claim; and (vi) to the knowledge of
the Company, there is no valid and subsisting patent or published
patent application that would preclude the Company, in any material
respect, from practicing any such Intellectual Property, except in
the case of each of (i) through (vi), such as would not have a
Material Adverse Effect.
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(dd) Since
the respective dates as of which information is given in the Final
Memorandum, the clinical studies conducted by or sponsored by the
Company that are described in the Final Memorandum or the results
of which are referred to in the Final Memorandum were and, if still
pending, are being conducted in compliance in all respects with all
applicable U.S. Food and Drug Administration (the "FDA") rules,
regulations and policies except for such noncompliance that would
not have a Material Adverse Effect. The descriptions of the results
of such studies in the Final Memorandum are accurate in all
material respects and fairly present the data derived from such
studies. Except as disclosed in the Final Memorandum, the Company
has operated and currently is in compliance in all respects with
all applicable FDA rules, regulations and policies except for such
noncompliance that would not have a Material Adverse Effect. The
Company has not received any notices or other correspondence from
the FDA or any other governmental agency requiring the termination
or suspension of any clinical studies that are described in the
Final Memorandum or the results of which are referred to in the
Final Memorandum which termination or suspension could reasonably
be expected to have a Material Adverse Effect.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Initial Purchaser.
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Initial Purchaser, and
each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company, (a) at a purchase price of 99.642% of
the principal amount thereof the principal amount of the 2010 Notes
set forth opposite such Initial Purchaser's name in Schedule I
hereto, (b) at a purchase price of 99.487% of the principal amount
thereof the principal amount of the 2015 Notes set forth opposite
such Initial Purchaser's name in Schedule I hereto, (c) at a
purchase price of 98.975% of the principal amount thereof the
principal amount of the 2035 Notes set forth opposite such Initial
Purchaser's name in Schedule I hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on July
18, 2005, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the
respective accounts of the several Initial Purchasers against
payment by the several Initial Purchasers through the
Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to the
account specified by the Company. Delivery of the Securities sold
pursuant to Clauses 4(b)(i) shall be made through the facilities of
The Depository Trust Company unless the Representatives shall
otherwise instruct. Certificates for such Securities shall be
registered in the name of Cede & Co., as nominee of the
Depositary Trust Company. The Company agrees to have the Securities
available for inspection by the Representatives in New York, New
York, not later than 1:00 PM on the Business Day prior to the
Closing Date.
4.
Offering by Initial Purchasers
. (a) Each Initial Purchaser acknowledges
that the Securities have not been and will not be registered under
the Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons, except pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Act.
(b) Each
Initial Purchaser, severally and not jointly, represents and
warrants to and agrees with the Company that:
(i) it
has not offered or sold, and will not offer or sell, any Securities
within the United States or to, or for the account or benefit of,
U.S. persons (x) as part of their distribution at any time or (y)
otherwise until 40 days after the later of the commencement of the
offering and the date of closing of the offering except:
(A) to those it
reasonably believes to be "qualified institutional buyers" (as
defined in Rule 144A under the Act); or
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(B) in accordance with Rule 903 of
Regulation S;
(ii) neither
it nor any person acting on its behalf has made or will make offers
or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the
meaning of Regulation D) in the United States;
(iii) in
connection with each sale pursuant to Section 4(b)(i)(A), it has
taken or will take reasonable steps to ensure that the purchaser of
such Securities is aware that such sale is being made in reliance
on Rule 144A;
(iv) neither
it, nor any of its Affiliates nor any person acting on its or their
behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the
Securities;
(v) it
has not entered and will not enter into any contractual arrangement
with any distributor (within the meaning of Regulation S) with
respect to the distribution of the Securities, except with its
affiliates or with the prior written consent of the
Company;
(vi) it
and its Affiliates have complied and will comply with the offering
restrictions requirement of Regulation S;
(vii) at
or prior to the confirmation of sale of Securities (other than a
sale of Securities pursuant to Section 4(b)(i)(A) of this
Agreement), it shall have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration
that purchases Securities from it during the distribution
compliance period (within the meaning of Regulation S) a
confirmation or notice to substantially the following
effect:
"The
Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered or sold
within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any
