EXHIBIT 10.7
October 14. 1999
REGISTRATION RIGHTS
AND
SHAREHOLDER'S AGREEMENT
This Registration Rights and Shareholder's Agreement is entered into
as of the 18th day of October, 1999, by and among Dendreon Corporation, a
Delaware Corporation (the "Company") and Fresenius AG, a German Corporation
("Fresenius"). Fresenius is sometimes individually referred to herein as the
"Shareholder".
WITNESSETH:
Whereas, pursuant to that certain Warrant Purchase Agreement dated the
date hereof by and between the Company and Fresenius (the "Warrant Purchase
Agreement"), Fresenius has acquired a warrant to purchase up to 250,000 shares
of the Company's Common Stock (as defined in the Warrant Purchase Agreement);
and
Whereas, each of the parties considers the provisions contained herein
to be in the best interest of the Company;
Now, Therefore, in consideration of the premises and of the mutual
consents and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
1. Registration Rights.
1.1 Definitions. For purposes of this Agreement:
(a) The term "Securities Act" means the Securities Act of
1933, as amended, or any other statute in effect from time to time corresponding
to such act.
(b) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and the declaration or ordering
of effectiveness of such registration statement.
(c) The term "Registrable Securities" means (i) Common Stock
issued to the shareholders, and (ii) any securities of the Company issued as a
dividend or other distribution with respect to, or in exchange or in replacement
of, such Common Stock.
(d) The term "Initial Public Offering" means the first
underwritten public offering of the Company's securities pursuant to a
registration statement in compliance with the Securities Act on Form S-1 or any
successor form.
1.2 Company Registration. If at any time or from time to time
the Company proposes to register any of its Common Stock under the Securities
Act in connection with a public offering of such securities solely for cash and
shares of Common Stock held by persons
1.
other than the Company are to be included in such registration other than in
connection with the initial public offering, the Company shall, each such time,
promptly give Fresenius written notice of such proposed registration. Upon the
written request of Fresenius given within twenty (20) days after mailing of any
such notice by the Company, the Company shall use its reasonable best efforts to
cause to be registered under the Securities Act all of the Registrable
Securities that Fresenius has requested be registered.
1.3 Registrations on Form S-3. If (i) the Company intends to
file a registration statement on Form S-3 (or any successor form to Form S-3
regardless of its designation) for a public-offering of shares of the
Registrable Securities, the reasonably anticipated aggregate price to the public
of which would exceed Five Hundred Thousand Dollars ($500,000) and (ii) the
Company is a registrant entitled to use Form S-3 to register such shares, then
the Company shall notify Fresenius of such request and shall use its reasonable
best efforts to cause to be registered on Form S-3 (or any successor form to
Form S-3) all of the Registrable Securities that Fresenius requests to be so
registered. Rights to registration under this paragraph 1.3 are in addition to,
and not in lieu of, rights to registration under paragraph 1.2.
1.4 Obligations of the Company. Whenever required under
paragraphs 1.2 or 1.3 to use its reasonable best efforts to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration
statement to become and remain effective; provided, however, that in connection
with any proposed registration intended to permit an offering of any securities
from time to time (i.e., a so-called "shelf registration"), the Company shall in
no event be obligated to cause any such registration to remain effective for
more than ninety (90) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition or all
securities covered by such registration statement.
(c) Furnish to the Shareholders and deliver as directed such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions, and further provided that (anything
in this Agreement to the contrary notwithstanding with respect to the bearing of
expenses) if any jurisdiction in which the securities shall be qualified shall
require that expenses incurred in connection with the
2.
qualification of the securities in that jurisdiction be borne by selling
shareholders, then such expenses shall be payable by the selling shareholders
pro rata, to the extent permitted by such jurisdiction.
1.5 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
that Fresenius shall furnish to the Company such information regarding
Fresenius, the Registrable Securities held by it, and the intended method of
disposition of such securities as the Company shall reasonably request and as
shall be required in connection with the action to be taken by the Company.
1.6 Company Registration Expenses. In the case of any
registration effected pursuant to paragraphs 1.2 or 1.3, the Company shall bear
all registration and qualification fees and expenses (excluding underwriters'
discounts and commissions), including any additional costs and disbursements of
counsel for the Company that result from the inclusion of securities held by
Fresenius in such registration; provided, however, that Fresenius shall bear the
fees and costs of its own counsel.
1.7 Underwriting Requirements. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required to include any of Fresenius's Registrable Securities in
such underwriting unless Fresenius accepts the terms of the underwriting as
agreed upon between the Company and the underwriters selected by the Company. If
the total amount of Registrable Securities that the Shareholder and other
shareholders of the Company with registration rights (the "Other Shareholders")
request to be included in an offering exceeds the amount of securities that the
underwriters reasonably believe compatible with the success of the offering,
there shall be included in such registration that number of Registrable
Securities which in the opinion of the underwriters can be sold, giving effect
to the rights of the Other Shareholders, and the securities so included shall be
apportioned pro rata among the selling shareholders according to the total
amount of Registrable Securities owned by said selling Shareholder.
1.8 Delay of Registration. Fresenius shall not have any right to
take any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.9 Indemnification and Contribution. In the event any
Registrable Securities are included in a registration statement pursuant to this
Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless Fresenius, any underwriter (as defined in the
Securities Act) for it, and each person, if any, who controls Fresenius or
underwriter within the meaning of the Securities Exchange Act of 1934 (the "1934
Act") against any losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Securities Act, the 1934 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus, or any amendments or
supplements thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the
3.
statements therein not misleading or arise out of any violation by the Company
of any rule or regulation promulgated under the Securities Act or the 1934 Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration; and will reimburse Fresenius,
such underwriter, or such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this paragraph 1.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld) nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in connection with such registration
statement, preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by Fresenius,
underwriter or controlling person.
(b) To the extent permitted by law, Fresenius will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act or the 1934 Act, and each agent
and any underwriter for the Company (within the meaning of the Securities Act or
the 0000 Xxx) against any losses, claims, damages or liabilities, joint or
several, to which the Company or any such director, officer, controlling person,
agent or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or omission of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus, or any amendments or supplements
thereto, or arise out of or are based upon 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, in each case to the extent, but only to
the extent, that such untrue statement or omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by such Shareholder expressly for use in connection with such registration; and
each such Shareholder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person, agent
or underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this paragraph 1.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Shareholder (which consent
shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under
this paragraph of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this paragraph, notify the indemnifying party in writing of the
commencement thereof and (unless the interest of the indemnifying party
conflicts with that of the indemnified party) the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel
4.
mutually satisfactory to the parties. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial to his
ability to defend such action, shall relieve such indemnifying party, to the
extent that it is prejudiced thereby, of any liability to the indemnified party
under this paragraph, but the omission so to notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this paragraph.
(d) In order to provide for just and equitable contribution
to joint liability under the Securities Act in any case in which either (i)
Fresenius, or any controlling person of Fresenius, makes a claim for
indemnification pursuant to this paragraph 1.9 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right or appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this paragraph 1.9 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of Fresenius
or any such controlling person in circumstances for which indemnification is
provided under this paragraph 1.9; then, and in each such case, the Company and
Fresenius will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that Fresenius is responsible for the portion represented by
the percentage that the public offering price of its Registrable Securities
offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) Fresenius will not be required to contribute any amount in excess of
the public offering price of all such Registrable Securities offered by it
pursuant to such registration statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 1l(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
1.10 Reports Under Securities Exchange Act of 1934. With a view
to making available to the Shareholder the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may at
any time permit the Shareholder to sell securities of the Company to the public
without registration, in the event that the Company becomes a reporting Company
under the 1934 Act, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times subsequent to ninety
(90) days after the effective date of the first registration statement covering
an underwritten public offering filed by the Company;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the 1934 Act; and
(c) furnish to Fresenius upon request a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company with the SEC as may be reasonably requested in
availing Fresenius of any rule or regulation of the SEC permitting the selling
of any such securities without registration.
5.
1.11 Lockup Agreement. In consideration for the Company agreeing
to its obligations under this Section 1, Fresenius agrees in connection with any
registration of the Company's Common Stock for sale to the general public that,
upon the request of the Company or the underwriters managing any underwritten
offering of the Company's securities, not to sell, make short sale of; loan,
grant any option for the purchase of, or otherwise dispose of any Registrable
Securities (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for a
period from the effective date of such registration as the Company or the
underwriters may specify, but not longer than the shortest period with respect
to lockup arrangements applicable to any officer, director or five percent
shareholder of the Company who has registration rights.
2. "Drag-Along" Rights.
2.1 "Drag-Along" Rights. In the event that a majority of the
outstanding shares of the Company's Preferred or Common Stock receives a bona
fide written offer of purchase, the Company shall provide copies of such written
offer to Fresenius as soon as reasonably possible. If the holders of a majority
of the outstanding shares of Preferred or Common Stock agree to the terms and
conditions of the sale, then Fresenius shall likewise be bound to the same terms
and conditions and shall accept the offer and complete the transaction.
2.2 Termination of "Drag Along" Rights. The rights and
restrictions provided in Section 2.1 hereof shall terminate upon the completion
of the Company's Initial Public Offering.
3. Repurchase Obligation. The Company agrees that in the event the
holders of a majority of the outstanding shares of the company's Preferred Stock
or Common Stock, not including Fresenius, agree to enter into any transaction
that would result in the sale or exchange by such holders of a majority of the
outstanding shares of the Company's Preferred Stock or Common Stock, as the case
may be, the Company shall no later than 10 (ten) days prior to such transaction
provide a notice thereof to Fresenius. The notice shall set forth (a) the number
of shares of Preferred or Common Stock to be transferred, (b) the principal
terms of the transfer, including the minimum price at which the shares of
Preferred or Common Stock are intended to be transferred, (c) the identity of
the proposed purchaser, and (d) an offer to purchase on substantially the same
terms and conditions, a number of shares of Common Stock then held by Fresenius,
determined by multiplying the number of shares of Common Stock held by Fresenius
by a fraction, the numerator of which shall be the number of shares of Preferred
or Common Stock which such holders have agreed to transfer and the denominator
of which shall be the number of shares of Preferred or Common Stock outstanding
immediately prior to the transfer of any of the shares of Preferred or Common
Stock to the purchaser or, at the option of Fresenius, a lessor number of
shares. The foregoing rights shall terminate upon the completion of the
Company's Initial Public Offering.
4. Notices. All notices required or permitted to be given to the
Shareholder or the Company pursuant to any of the terms hereof shall be sent by
certified mail, return receipt requested, postage prepaid, addressed to the
Shareholder or the Company at the addresses set forth on the signature pages
hereto.
6.
5. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof.
6. 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), with the written consent of the Shareholder and the Company. Any
amendment or waiver effected in accordance with this Section shall be binding
upon each party to this Agreement, any person who may become a party, and the
Company.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their heirs, legal representatives,
successors and assigns.
8. Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
9. Applicable Law. This Agreement shall be governed by the laws of
the State of New York without regard to conflict or choice of law provisions.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Dendreon Corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
-----------------------------
Title: President
----------------------------
0000 - 0xx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
Fresenius Ag
By: /s/ illegible
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Name:_____________________________
Title:____________________________
Xxxx-Xx0xxx-XxxxXx 0
00000 Xxx Xxxxxxx v.d.h.
Germany
7.
