AMENDMENT NO. 2 TO COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.3
AMENDMENT
NO. 2 TO
This
Amendment
No. 2 (the
“Second
Amendment”)
to that certain Common Stock Purchase Agreement, dated October 11, 2007
and as amended by Amendment No. 1 thereto dated as of October 8, 2008 (as so
amended, the “Agreement”),
by and between Dendreon Corporation, a Delaware corporation (the
“Company”),
and Azimuth Opportunity Ltd., an international business company incorporated
under the laws of the British Virgin Islands (the “Investor”),
is entered into as of February 9, 2009 (the “Second
Amendment
Date”). Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Agreement.
Recitals
Whereas, Section 7.1 of the Agreement
provides in part that, unless earlier terminated, the Agreement shall terminate
automatically on the earliest of (i) the first day of the month next following
the 18-month anniversary of the Effective Date (the “Investment Period”),
(ii) the date that the aggregate dollar amount of Shares registered under the
Registration Statement have been issued and sold and (iii) the date the Investor
shall have purchased the Total Commitment of shares of Common Stock (subject in
all cases to the Trading Market Limit);
Whereas, the Agreement remains in
full force and effect;
Whereas,
Section 9.3 of the Agreement provides that the Agreement may be amended by a
written instrument signed by the Company and the Investor; and
Whereas,
the Company and the Investor now desire to amend the Agreement as set forth
herein.
Agreement
Now,
Therefore, in consideration of the
mutual promises, representations, warranties, covenants and conditions set forth
in the Agreement and this Second Amendment, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment of Section
7.1. Effective as of the Second Amendment Date, Section 7.1 of
the Agreement shall be amended to replace the first sentence thereof with the
following:
“Unless earlier terminated as provided
hereunder, this Agreement shall terminate automatically on the
earliest of (i) the first day of the month next following the 36-month
anniversary of the Effective Date (the “Investment
Period”), (ii) the date
that the aggregate dollar amount of Shares registered under the Registration
Statement have been issued and sold and (iii) the date the Investor shall have
purchased the Total Commitment of shares of Common Stock (subject in all cases
to the Trading Market Limit).”
2. Continuing Effect of
Agreement. Except as expressly set forth in this Second
Amendment, all other provisions of the Agreement remain in full force and
effect.
3. Governing Law. This
Second Amendment shall be governed by and construed in accordance with the
internal procedure and substantive laws of the State of New York, without giving
effect to the choice of law provisions of such state.
4. Counterparts. This
Second Amendment may be executed in counterparts, all of which taken together
shall constitute one and the same original and binding instrument and shall
become effective when all counterparts have been signed by each party and
delivered to the other parties hereto, it being understood that all parties
hereto need not sign the same counterpart.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
In Witness
Whereof, the
parties hereto have caused this Amendment
No. 2 to the Agreement to be executed and delivered as of the Second
Amendment Date.
| Company: Dendreon Corporation | Investor: AZIMUTH OPPORTUNITY LTD | |||
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/s/Xxxxxxx
Xxxxxxxxx
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/s/
Xxxxxx X. XxXxx
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Name:
Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxx X. XxXxx
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Title:
Sr. Vice President, Finance, Chief Financial Officer and
Treasurer
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Title:
Corporate Secretary
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