EXHIBIT 10.8
WARRANT
between
DENDREON CORPORATION
and
FRESENIUS AG
Dated October 18, 1999
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS WARRANT AGREEMENT IS
RESTRICTED BY AGREEMENTS ON FILE AT THE OFFICES OF THE CORPORATION.
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
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WARRANT TO PURCHASE SHARES OF COMMON STOCK OF DENDREON
CORPORATION
WARRANT (the "Warrant"), dated October 18, 1999, between DENDREON
CORPORATION, a Delaware Corporation (the "Company"), and FRESENIUS AG, a German
Corporation.
PREAMBLE
Fresenius AG (the "Initial Holder" and, with any subsequent holder
permitted pursuant to Section 5.4 of the Warrant Purchase Agreement between the
Company and Fresenius AG effective as of October 18, 1999, each a "Holder"), for
value received, may, subject to the terms set forth below, purchase from the
Company up to 250,000 fully paid and nonassessable shares of the Company's
Common Stock, par value $.001 per share (the "Stock"), at a price of $5.00 per
share of Stock (the "Stock Purchase Price"). The number of shares of Stock
purchasable upon the exercise of this Warrant is subject to adjustment as
provided in Section 9. This Warrant may be exercised at the times set forth in,
and subject to the conditions of, Section 1, but not later than 5:00 P.M. (New
York City time) on October 17, 2004 (the "Expiration Date"). This Warrant and
all rights hereunder, to the extent not exercised in the manner set forth
herein, shall terminate on the Expiration Date. Unless otherwise defined in
context or the context otherwise requires, capitalized terms used herein are
defined on Schedule 1 attached hereto, which Schedule is incorporated herein by
reference and made a part hereof.
This Warrant is subject to the following terms and conditions:
1. Exercise. This Warrant may be exercised prior to the Expiration Date
at any time or from time to time from and after the date of issuance of this
Warrant.
This Warrant may be exercised upon surrender to the Company at its
principal office in Seattle, Washington (or at such other location as the
Company may advise the Holder in writing) of this Warrant properly endorsed with
the Form of Exercise attached hereto completed in full and signed and payment
representing the aggregate Stock Purchase Price for the number of shares of
Stock for which this Warrant is being exercised.
2. Notice of Exercise. This Warrant shall be exercised by surrendering to
the Company, at its principal office, the certificate representing this Warrant
to be exercised, together with written notice of exercise duly completed and
signed, in the form of Attachment A hereto, which notice shall be accompanied by
payment to the Company of the Exercise Price, as set forth in Section 6, below.
Upon giving such notice and making such payment, the Company shall issue to the
Holder the shares of Common Stock to which the Holder is entitled hereunder.
3. Partial Exercise. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant, simultaneously execute and
deliver a new warrant evidencing the rights of the Holder to purchase the
balance of the shares of Common Stock purchasable hereunder. Except as otherwise
set forth herein, the Holder shall have none of
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the rights of a stockholder in respect of the shares of Common Stock subject to
this Warrant until such shares are issued or transferred to the Holder.
4. Taxes. The Company shall pay all expenses, and any and all United
States federal, state and local taxes, issue tax and other charges that may be
payable in connection with the preparation, issue and delivery of stock
certificates in the name of Fresenius other than income taxes.
5. Minimum Exercise. Anything herein to the contrary notwithstanding,
this Warrant may not be exercised for fewer than the lesser of (i) 50,000 shares
of Common Stock or (ii) all remaining shares of Common Stock subject to this
Warrant.
6. Payment of Exercise Price.
(a) Cash. Payment of the Exercise Price shall be made by cash or
check of an amount equal to the exercise price per share of $5.00 multiplied by
the number of shares then being purchased.
(b) Net Exercise. In lieu of paying the Exercise Price as provided in
6(a) above, the Holder may elect to receive shares equal to the value (as
determined below) of the Warrant by indicating on the notice of exercise that
the Holder is making such election, in which event the Company shall issue to
Fresenius a number of shares (calculated to the nearest share) computed using
the following formula:
X= Y(A-B)
---------
A
X= the number of shares to be issued to Fesenius.
Y= the number of shares for which the Warrant is being exercised.
A= the current fair market value of one share of Common Stock.
B= the purchase price of one share of Common Stock under the
Warrant (initially $5.00).
As used herein, current fair market value of Common Stock shall mean, with
respect to each share of Common Stock: the average of the closing prices of the
Company's Common Stock sold on all securities exchanges on which the Common
Stock may at the time be listed, or, if there have been no sales on any such
exchange on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day the Common Stock is
not so listed, the average of the representative bid and lowest asked price on
such day in the domestic over-the counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization. If at
any time the Common Stock is not listed on any securities exchange or not quoted
in the NASDAQ System or the over-the-counter market, the current fair market
value of the Common Stock shall be the highest price per share
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which the Company could obtain from an independent, willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined by the Board of Directors in good
faith. In the event that the Holder does not agree with such determination, the
price shall be determined by the regular accountants of the Company utilizing
customary valuation principles.
7. Issuance. The shares of Stock purchased under this Warrant shall be
deemed to be issued to the Holder upon such Holder's exercise of this Warrant,
as the record owner of such shares as of the close of business on the date on
which this Warrant shall have been surrendered and payment made for such shares.
Certificates representing shares of Stock so purchased, together with any other
securities or property to which such Holder may be entitled upon such exercise,
shall be delivered to such Holder by the Company or its agent at the Company's
expense promptly after this Warrant has been exercised. Each certificate so
delivered shall be in such denomination as may be requested by such Holder and
shall be registered in the name of such Holder or such other name as shall be
designated by such Holder. If, upon exercise of this Warrant, fewer than all of
the shares of Stock available for purchase under this Warrant are purchased
prior to the Expiration Date, a new warrant substantially in the form and on the
terms of this Warrant shall be issued by the Company for the shares of Stock not
purchased upon exercise of this Warrant.
8. Shares to be Fully Paid; Reservation of Shares. All shares of Stock
issued upon the exercise of this Warrant shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved for issuance a sufficient number of shares of authorized
but unissued Common Stock when and as required to provide for the exercise of
this Warrant. The Company shall ensure that such shares of Common Stock may be
issued as provided herein without violation of any law or regulation or of any
requirement of any domestic securities exchange or automated quotation system
upon which the Stock may be listed; provided, however, that the Company shall
not be required to effect a registration under federal or state securities laws
with respect to such issuance.
9.1 Adjustments. The number of shares of Stock deliverable upon the
exercise of the Warrant and the Stock Purchase Price shall be subject to the
following adjustments:
(a) If, at any time after the date hereof, the number of shares of
Common Stock outstanding is increased by a dividend payable in Common Stock or
by a subdivision or split-up of Common Stock, then, immediately following the
record date fixed for the determination of holders of Common Stock entitled to
receive such dividend, subdivision or split-up, the Stock Purchase Price shall
be appropriately decreased and the number of shares of Common Stock issuable
upon exercise of this Warrant shall be appropriately increased, in each case in
proportion to such increase in such outstanding shares.
(b) If, at any time after the date hereof, the Company makes, or fixes
a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other
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distribution payable in securities of the Company, and no equivalent
distribution is made for this Warrant, then and in each such event provision
shall be made so that the Holder of this Warrant shall receive, when and if this
Warrant is exercised, the amount of such securities which the Holder would have
received had the Holder exercised this Warrant on the date of such event.
9.2 Abandoned Distributions. If the Company shall take a record of the
holders of Common Stock for the purpose of entitling them to receive a dividend
or other distribution and thereafter and before the distribution to such
stockholders the Company legally abandons its plan to pay or deliver such
dividend or distribution, no adjustments shall be required by reason of the
taking of such record.
9.3 Merger, Consolidation, Etc. In case of any Transaction, this Warrant
shall be exercisable into, in lieu of the Stock issuable upon such exercise
prior to consummation of such Transaction, the kind and amount of shares of
stock and other securities and property receivable (including cash) upon the
consummation of such Transaction (the "Transaction Consideration") by a holder
of that number of shares of Stock into which this Warrant was exercisable
immediately prior to such Transaction (including, on a pro rata basis, the cash,
securities or property received by holders of Common Stock in any tender or
exchange offer that is a step in such Transaction). If securities or property
other than Stock shall be issuable or deliverable upon exercise as aforesaid,
all references in this Section 9.3 shall be deemed to apply, so far as
appropriate and nearly as may be, to such other securities or property.
9.4 Notice. If at any time or from time to time the Company shall pay any
stock dividend or make any other non-cash distribution to the holders of its
Common Stock, offer for subscription pro rata to the holders of its Common Stock
any additional shares of stock of any class or any other right, undergo any
capital reorganization or reclassification of the Common Stock or consolidation
or merger of the Company with or into another corporation, sell, lease or convey
to another corporation the property of the Company as an entirety or in
substantial portion or undergo a voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, in any one or more of said
cases, the Company shall promptly give prior written notice thereof to the
Holder of this Warrant as of the date on which (a) the books of the Company
shall close or a record shall be taken for such stock dividend, distribution or
subscription rights or (b) such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, dissolution, liquidation or winding up shall
take place, as the case may be. Such notice shall also specify the date as of
which the holders of the Common Stock of record shall participate in said
dividend, distribution or subscription rights or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, lease or
conveyance or participate in such dissolution, liquidation or winding up, as the
case may be.
9.5 Certificate of Adjustment. In each case of an adjustment or
readjustment of the number of shares of Stock or other securities issuable upon
exercise of this Warrant, the Company shall compute such adjustment or
readjustment in accordance with the provisions hereof, and shall promptly give
written notice thereof to the Holder in the manner set forth in Section 14
herein and shall prepare and file at its principal executive office and with any
transfer
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agent for this Warrant or the Stock, a certificate, signed by the Chief
Executive Officer or President or one of the Vice Presidents of the Company, and
by its Chief Financial Officer or Treasurer or any Assistant Treasurer, showing
such adjustment or readjustment. The certificate also shall set forth in detail
the facts upon which such adjustment or readjustment is based, including (1) the
event requiring the adjustment, (2) the method by which such adjustment was
calculated and (3) the type and amount, if any, of other property which at the
time would be received upon exercise of this Warrant.
10. No Voting or Dividend Rights; Limitation of Liability. Nothing
contained in this Warrant shall be construed as conferring upon any Holder the
right to vote or to consent or to receive notice as a stockholder in respect of
meetings of stockholders for the election of directors of the Company or any
other matters or any rights whatsoever as a stockholder of the Company. No cash
dividends shall be payable in respect of this Warrant or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof and no enumeration herein of the rights or
privileges of any Holder shall give rise to any liability of any such Holder as
a stockholder of the Company, whether such liability is asserted by the Company
or by its creditors.
11. Restrictions on Transferability: Compliance With Securities Act.
11.1 Restrictions on Transferability. Neither this Warrant nor the
shares of Stock issued upon exercise of this Warrant shall be transferable
except upon the conditions specified in the Purchase Agreement and the
Registration Rights and Shareholder's Agreement, which conditions are intended
(among other things) to ensure compliance with the Securities Act and state
securities laws.
11.2 Restrictive Legend. This Warrant, each certificate representing
shares of Stock issued upon exercise of this Warrant, any subsequent warrants
delivered pursuant hereto and any other Stock issued in connection herewith upon
any stock split, stock dividend, recapitalization, merger, consolidation or
otherwise, shall be stamped or otherwise imprinted with legends to the following
effect:
"THE TRANSFER OF THESE SECURITIES IS RESTRICTED BY AGREEMENTS ON FILE AT
THE OFFICES OF THE CORPORATION."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND
ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
11.3 Ownership. Subject to Section 11.1, this Warrant may be
transferred by the Holder thereof upon surrender to the Company of this Warrant
accompanied by an Assignment in the form attached hereto or by such other
written instrument or instruments of
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transfer satisfactory to the Company. If the right to purchase all of the shares
of Stock covered by this Warrant are so transferred, the transferee shall
promptly receive a new warrant of like tenor and date evidencing the right to
purchase the same number of shares of Stock. If the right to purchase less than
all of the shares of Stock covered by Warrant are so transferred, the
transferring Holder shall promptly receive a new warrant covering the shares of
Stock with respect to which the right to purchase shall not have been so
transferred, and the Holder to whom the balance of such warrant is transferred
shall be entitled to receive a new warrant covering the remaining shares of
Stock. A warrant, if properly assigned, may be exercised by a new Holder without
first having a new warrant delivered.
12. Severability. Should any one or more of the provisions of this
Warrant be determined to be illegal or unenforceable, all other provisions of
this Warrant shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
13. Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be validly given, if in writing
and delivered personally, by confirmed telecopy or sent by registered or
certified mail or nationally recognized air courier service or overnight courier
service, postage prepaid:
(a) if to the Initial Holder, addressed to it in the manner set forth
in the Purchase Agreement, or at such other address as it shall have furnished
to the Company in writing;
(b) if to any other Holder, at the address that such Holder shall
have furnished to the Company in writing or, until any such other Holder so
furnishes to the Company an address, then to and at the address of the last
Holder of this Warrant who has furnished an address to the Company; and
(c) if to the Company, addressed to it in the manner set forth in the
Purchase Agreement, or at such other address as the Company shall have furnished
to each Holder in writing; and each such notice, request, consent, instruction,
approval and other communication shall for all purposes of this Warrant be
treated as being effective or having been given when delivered, if delivered
personally, or, if sent by mail, at the earlier of its actual receipt or three
(3) days after the same has been deposited in a regularly maintained receptacle
for the deposit of United States mail, addressed and postage prepaid as
aforesaid, or if sent by telecopier, when confirmed, or if sent by air courier,
two (2) days alter the same has been deposited with such air courier, or if sent
by overnight courier, one (1) day after the same has been deposited with such
overnight courier.
14. Amendments. This Warrant may not be amended, waived, changed,
modified or discharged except in writing signed by the party against which
enforcement is sought. No waiver by any party of the breach of any term or
provision contained in this Warrant, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Warrant.
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15. Successors and Assigns. All the terms and provisions of this Warrant
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns. Assignments by the
Holder shall be made and notified to the Company in the form attached hereto as
Attachment B.
16. Headings. Headings of the Sections and paragraphs of this Warrant
have been inserted for convenience of reference only and do not constitute a
part of this Warrant.
17. Governing Law. It is the intention of the parties that the internal
substantive laws, and not the laws of conflicts, of the State of New York should
govern the enforceability and validity of this Warrant, the construction of its
terms and the interpretation of the rights and duties of the parties.
18. Lost Warrant. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant or any subsequent
warrant delivered pursuant hereto and, in the case of loss, theft or
destruction, upon delivery of an indemnity satisfactory to the Company, or, in
the case of mutilation, upon surrender thereof, the Company shall issue a new
warrant or warrants, as the case may be, of like tenor and date.
19. Jurisdiction. Each party to this Warrant hereby irrevocably agrees
that any legal action or proceeding arising out of or relating to this Warrant
or any agreements contemplated hereby may be brought in the courts of the State
of New York or of the United States of America for the Southern District of New
York and hereby expressly submits to the personal jurisdiction and venue of such
courts for the purposes thereof and expressly waives any claim of improper venue
and any claim that such courts are an inconvenient forum. Each party hereby
irrevocably consents to the service of process of any of the aforementioned
courts in any such suit, action or proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to the address set forth or
referred to in Section 13, such service to become effective 10 days after such
mailing.
IN WITNESS WHEREOF, the Company and the Initial Holder have caused this
Warrant to be executed and delivered as of the day and year first above written.
DENDREON CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
--------------------------
Title: President
-------------------------
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
X.X.X.
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FRESENIUS AG
By: /s/ Illegible
----------------------------
Name:__________________________
Title:_________________________
Xxxx-Xxxxxx-XxxxXx 0
00000 Xxx Xxxxxxx v.d.h.
Germany
[Warrant Signature Page]
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DENDREON CORPORATION
Form of Exercise
The undersigned hereby elects to exercise its right to purchase,
represented by the within Warrant, _________ shares of Stock provided for
therein, and requests that certificates for such shares of Stock be issued in
the name of:
______________________________________________________________________________
(Please print name, address and social security number or other tax identifying
number)
______________________________________________________________________________
and, if said number of shares of Stock shall not be all the shares of Stock
purchasable thereunder, that a new warrant for the balance of the shares of
Stock purchasable under the within Warrant be executed and delivered to the
undersigned or its assignee as indicated below at the address below. The
undersigned hereby represents and warrants that all conditions contained in the
Warrant to the exercise of its right to purchase such shares of Stock have been
satisfied.
DATED: ______________ ___________________________
Signature of Holder
NAME OF
HOLDER OR
ASSIGNEE: ___________________________________________________________________
(Please print)
NOTE:
The signature above must correspond with the name exactly as it appears on the
face of the Warrant in every particular, without alteration or any change
whatever, unless the Warrant has been assigned.
ATTACHMENT A
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DENDREON CORPORATION
Form of Assignment
The undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Name and address of assignee must be printed or typewritten)
________________________________________________________________________________
the right to purchase, represented by the within Warrant, __________ shares of
Stock provided for therein, and hereby irrevocably constitutes and appoints the
Company's Secretary to make such transfer. The undersigned requests that a new
warrant for such shares be executed and delivered to the assignee and, if said
number of shares of Stock shall not be all the shares of Stock purchasable under
the within Warrant, a new warrant agreement for the balance of the shares of
Stock purchasable thereunder be executed and delivered to the undersigned.
DATED: ________________ ___________________________________
Signature of Holder
NAME OF HOLDER: ________________________________________________________________
(Please print)
ADDRESS: _______________________________________________________________________
NAME OF
ASSIGNEE: ______________________________________________________________________
(Please print)
ADDRESS: _______________________________________________________________________
NOTE:
The signature of the Holder on this Assignment must correspond with the name
exactly as it appears upon the face of the within Warrant in every particular,
without alteration or any change whatever.
ATTACHMENT B
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SCHEDULE 1
DEFINITIONS
This Schedule 1 to that certain Warrant, dated as of October 18, 1999, issued by
Dendreon Corporation to Fresenius AG defines certain of the terms used therein
and is made a part thereof. Such terms shall be applicable to both the singular
and plural forms of any of the terms herein defined.
"Purchase Agreement" means that certain Warrant Purchase Agreement, dated
as of the date hereof between the Company and the Initial Holder.
"Securities Act" means the Securities Act of 1933, as amended, or any
subsequent similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time. References to a particular section of the Securities Act
shall include a reference to the comparable section, if any, of any subsequent
similar Federal statute.
"Registration Rights and Shareholder's Agreement" means that certain
Registration Rights and Shareholder's Agreement, dated the date hereof, among
the Initial Holder and the Company.
"Transaction" means any consolidation or merger of the Company with or into
another corporation or any sale, lease or other conveyance to another
corporation of all or substantially all of the assets or property of the
Company.
"Warrant Shares" means the share or shares of Stock issued upon the
exercise of this Warrant.
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