PRIVATE EQUITY LINE FINANCING AGREEMENT
EXHIBIT 99.1
PRIVATE EQUITY LINE FINANCING AGREEMENT (this
“Agreement”), dated as of June 11, 2002, between DENDREON CORPORATION, a Delaware corporation (the “Company”), and BNY CAPITAL MARKETS, INC., a registered broker dealer organized under the laws of New York and a subsidiary of The
Bank of New York (the “Investor”).
ARTICLE I
“Actual Sold Amount” shall mean the number of Draw Down Shares that the Investor has committed to sell on any Trading Day during the Valuation Period.
“Affiliate” of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, such first- mentioned Person. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Average Daily Trading Volume” with respect to any Draw Down effected by the Company shall mean the average daily volume of shares of Common Stock traded on the Principal Market as reported
by Bloomberg Financial during the Pre-valuation Period.
“Bloomberg Financial” shall mean Bloomberg Financial Markets or an
equivalent reliable reporting service reasonably acceptable to the Company and hereafter designated by the Investor.
“Board of Directors” means (i) with respect to a corporation, the board of directors of the corporation (or any duly authorized committee thereof); (ii) with respect to a partnership, the Board of Directors (or any duly
authorized committee thereof) of the general partner of the partnership; and (iii) with respect to any other Person, the board or committee of such Person serving a similar function.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of corporate stock,
including each class of common stock and preferred stock, of such Person.
“Change in Control” means (i)
the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its
Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), (ii) the adoption of a plan relating to the liquidation or dissolution of the Company, (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) becomes the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by
voting power rather than number of shares, or (iv) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.
“Closing” shall have the meaning set forth in Section 2.02.
“Closing Date” shall mean the date on which the Closing occurs.
“Comfort Letter” shall mean a letter from Ernst & Young LLP or another “Big Four” independent public accounting firm, in form and substance reasonably satisfactory to the Investor, addressed to the Investor
and dated as of the Effective Date or the filing date of any Current Report on Form 8-K incorporated by reference into the Registration Statement, if such report contains substantial financial information, (i) confirming that they are independent
auditors within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the Effective Date or
filing date, as applicable, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings included in the Registration Statement or Form 8-K, as applicable.
“Commission” means
the United States Securities and Exchange Commission.
“Commitment Period” shall mean the period
commencing on the Effective Date and expiring on the earliest to occur of (x) the date on which the Investor shall have purchased Draw Down Shares pursuant to this Agreement for an aggregate Purchase Price of $25,000,000, (y) the date this Agreement
is terminated pursuant to Article VII and (z) the second anniversary of the date of this Agreement.
“Common
Stock” shall mean the Company’s Common Stock, $0.001 par value per share.
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“Common Shares” shall mean shares of the Company’s Common Stock
issued or issuable pursuant to this Agreement.
“Continuing Directors” shall mean as of any date of
determination, any member of the Board of Directors of the Company who (i) was a member of such Board of Directors on the date of this Agreement; or (ii) was nominated for election or elected to such Board of Directors with the approval of a
majority of the members of the Board of Directors of the Company who either were members of the Board of Directors of the Company on the date of this Agreement or whose nomination for election or election was previously so approved by a majority of
the Board of Directors of the Company on the date of this Agreement or other directors so nominated or elected.
“Cumulative Pro Rata Daily $ Amount” shall mean the quotient of the Remaining Draw Down $ Amount divided by the number of Trading Days remaining in the Valuation Period, with respect to any Trading Day during a Valuation
Period.
“Daily Closing Price” shall mean the daily closing price of the Company’s Common Stock on
the Principal Market.
“Daily Purchased Share Amount” shall mean the number of Draw Down Shares to be
purchased by the Investor with respect to any Trading Day during a Valuation Period, determined as forth in Section 2.03(c).
“Draw Down” shall mean each occasion the Company elects to exercise its right to deliver a Draw Down Notice requiring the Investor to purchase the Common Shares as specified in such Draw Down Notice, subject to the terms
and conditions of this Agreement.
“Draw Down Cancellation” shall have the meaning set forth in Section
6.04(a).
“Draw Down Cancellation Date” shall have the meaning set forth in Section 6.04(a).
“Draw Down Cancellation Notice” shall have the meaning set forth in Section 6.04(a).
“Draw Down Date” shall mean any Trading Day during the Commitment Period that a Draw Down Notice to sell Common Stock
to the Investor is deemed delivered pursuant to Section 2.03(b) hereof.
“Draw Down Notice” shall mean a
written notice to the Investor delivered in accordance with this Agreement in the form attached hereto as Exhibit A setting forth the Investment Amount that the Company intends to sell to the Investor pursuant to such Draw Down and the Floor Price
applicable to such Draw Down.
“Draw Down Share Limitation” shall have the meaning set forth in Section
2.01(c).
“Draw Down Shares” shall mean all shares of Common Stock issued or issuable pursuant to a Draw
Down that has occurred or may occur in accordance with the terms and conditions of this Agreement.
“DWAC
Transfer” shall have the meaning set forth in Section 2.04.
“Effective Date” shall mean the date
on which the Commission first declares effective a Registration Statement registering the resale of the Registrable Securities as set forth in Section 6.02(a).
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“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Floor Price” shall mean the lowest Daily Closing Price (before taking into account any discount used
to calculate the Purchase Price hereunder) at which the Company will sell its Common Stock as specified in the Draw Down Notice delivered in connection with any Draw Down effected pursuant to this Agreement, but in no event shall the Floor Price be
less than $3.00.
“Food and Drug Act” shall mean the Federal Food, Drug and Cosmetic Act, 21 U.S.C.
sections 301 et seq. and the rules and regulations promulgated thereunder.
“Governmental Authority”
means any federal or state government or political subdivision thereof and any agency or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Investment Amount” shall mean the aggregate dollar amount (within the range specified in Section 2.03) of any Draw Down Shares
to be purchased by the Investor with respect to any Draw Down affected by the Company in accordance with Section 2.03 hereof.
“Material Adverse Effect” has the meaning of a material adverse effect on the business, assets, operations, properties, prospects or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole,
or any adverse effect on the Company’s ability to consummate the transactions contemplated by, or to execute, deliver and perform its obligations under, each of the Transaction Documents.
“Maximum Draw Down Amount” with respect to any Draw Down effected by the Company in accordance with Section 2.03 hereof shall mean the lesser of (i)
$1,500,000 and (ii) 15% of the product of (x) the average of the Daily Closing Prices for each of the Trading Days in the Pre-valuation Period., multiplied by (y) the Average Daily Trading Volume during the Pre-valuation Period, multiplied by (z)
the Valuation Day Number.
“Maximum Share Amount” shall have the meaning set forth in Section 2.01(c).
“Minimum Draw Down Amount” shall mean $300,000.
“Person” means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture,
joint stock company, Governmental Authority or other entity of any kind.
“Pre-valuation Period” means
the number of Trading Days immediately preceding the applicable Draw Down Date that is equal to the number of Valuation Days in the applicable Valuation Period.
“Principal Market” shall mean the Nasdaq National Market, the American Stock Exchange or the New York Stock Exchange, whichever is at the time the principal trading exchange or market for the
Common Stock.
“Prospectus Supplement” shall have the meaning set forth in Section 6.02(k).
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“Purchase Price” with respect to each Trading Day during a Valuation
Period shall mean 97% of the Daily Closing Price for such Trading Day.
“Registrable Securities” shall
have the meaning given such term in the Registration Rights Agreement.
“Registration Rights Agreement”
shall mean the agreement regarding the filing of the Registration Statement for the resale of the Registrable Securities entered into between the Company and the Investor as of the Closing Date.
“Registration Statement” shall have the meaning given such term in the Registration Rights Agreement.
“Remaining Draw-down Amount” is the Investment Amount less the dollar amount of the Common Shares to be purchased through the previous Trading Day (in each
case computing the dollar amount of the Common Shares so purchased based on the applicable Purchase Price therefor).
“Sale Price” means the price per share of a sale of the Common Stock on the Principal Market, which sale is not executed by or on behalf of the Investor or any Affiliate thereof.
“SEC Reports” means the Company’s Annual Report on Form 10-K for the year-ended December 31, 2001, the Company’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, the Company’s definitive proxy statement, filed April 12, 2002, and when used in reference to dates after the date of this Agreement, reports and documents filed by the Company
hereafter under Sections 13(a), 13(c), 14 or 15(d) under the Exchange Act.
“Securities Act” means the
Securities Act of 1933, as amended.
“Settlement Date” shall mean the second Trading Day immediately
following the last Trading Day of the Valuation Period.
“Trading Day” shall mean any day during which
the Principal Market shall be open for trading.
“Transaction Documents” means, collectively, this
Agreement and the Registration Rights Agreement.
“Valuation Day” means a Trading Day within the
applicable Valuation Period.
“Valuation Day Number” shall mean the number of Trading Days in the
applicable Valuation Period.
“Valuation Period” shall mean the period of one (1) to five (5)
consecutive Trading Days (as determined by the Company in its sole discretion and specified in the applicable Draw-Down Notice) following the Trading Day on which a Draw Down Notice is delivered or deemed to be delivered pursuant to Section 2.03(b)
hereof.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.
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ARTICLE II
(c) Maximum Amount of Draw
Down Shares. No more than 4.8 million shares of Common Stock, which number the Company warrants represents less than 19.9% of the shares of Common Stock outstanding as of the Closing Date (the “Maximum Share Amount”)
may be issued and sold pursuant to all Draw Downs hereunder. No shares of Common Stock (the “Draw Down Share Limitation”) may be issued and sold in any Draw Down hereunder if and to the extent that such issuance and sale would result in
the Investor, together with its Affiliates, being deemed to beneficially own more than 9.99% of the Company’s outstanding Common Stock immediately after giving effect to such issuance and sale. Beneficial ownership for purposes of this
paragraph shall be calculated in accordance with Section 13(d) of the Exchange Act. The Investor will exercise its commercially reasonable best efforts to ensure that the ceiling does not bar purchases of the Company’s Common Stock by the
Investor as provided in this Agreement.
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contemplated thereby (including, without limitation, the reservation and issuance of the Common Stock pursuant to this Agreement), which authorization shall be in full force and effect on and as
of the date of such certificate and (B) certifying and attesting to the office, incumbency, due authority and specimen signatures of each Person who executed any Transaction Document for or on behalf of the Company; (iii) the Company shall deliver
to the Investor a certificate executed by the Chief Executive Officer, Chief Financial Officer or other officer designated in writing by the Chief Executive Officer of the Company, signing in such capacity, dated the date of the Closing, confirming
the accuracy of the representations and warranties of the Company contained in this Agreement; (iv) Xxxxxx Godward LLP, counsel to the Company, shall deliver to the Investor an opinion, dated the date of the Closing and addressed to the Investor,
substantially in the form of Exhibit B attached hereto; and (v) the Company shall pay the expenses set forth in Section 9.02 hereof by wire transfer to the account designated by the Investor in writing prior to the Closing.
(b) Delivery of Draw Down Notice. A Draw Down Notice shall be deemed delivered on (i) the Trading Day that it is received by facsimile or otherwise (and the Company confirms such delivery by e-mail
notice or by telephone (including voicemail message)) by the Investor if received prior to 12:00 noon, New York City time on such Trading Day, or (ii) in the event it is received by facsimile or otherwise (and the Company confirms such delivery by
e-mail notice or telephone (including voicemail message)) subsequent to 12:00 noon, New York City time, on a Trading Day, the immediately succeeding Trading Day. No Draw Down Notice may be delivered other than on a Trading Day during the Commitment
Period.
(c) Determination of Draw Down Shares Issuable. Subject to Section
2.03(d) and (e) hereof, the number of Draw Down Shares to be purchased by the Investor with respect to any Draw Down shall be determined daily and shall equal the sum of the Daily Purchased Share Amounts during the applicable Valuation Period,
calculated as follows:
For each Valuation Day, other than the last Valuation Day, the Daily Purchased Share
Amount shall equal the quotient of (x) the Cumulative Pro Rata Daily $ Amount divided by (y) the Purchase Price on the immediately preceding Trading Day. For the last Valuation Day, the Daily Purchased Share Amount shall equal the quotient of (x)
the Remaining Draw-down Amount divided by (y) the Purchase Price for such Valuation Day. Exhibit C to this Agreement is a true and correct example of the foregoing calculation provided for illustrative purposes.
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Actual Sold Amount on such Floor Price Termination Day, (ii) the purchase price for such shares shall be equal to 97% of the sales proceeds received by the Investor in respect of the Actual Sold
Amount on such Floor Price Termination Day, (iii) the Valuation Period for such Draw Down shall end on the Floor Price Termination Day, (iv) the Investment Amount relating to such Draw Down shall be reduced by the Remaining Draw Down Amount and (v)
the Draw Down shall remain effective as to the portion of the Investment Amount not terminated pursuant to the foregoing.
SECTION 2.05. Damages for Late Delivery or Non-Delivery of Draw Down Shares; Investor Right to Void Draw Down Notice. (a) In the event the Draw Down Shares are not delivered by
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the Company by a date that is no more than two Trading Days following any Settlement Date, the Company will pay the Investor the actual damages, if any, incurred by the Investor as a result of
such late delivery or non-delivery. For purposes of the foregoing, the actual damages of the Investor shall mean the actual costs, penalties and interest expense incurred by the Investor resulting from its failure to deliver on the Settlement Date
any Draw Down Shares it was entitled to receive from the Company on any Settlement Date, but did not receive by the date that is two Trading Days following such Settlement Date, to any unaffiliated third party to whom it had agreed to deliver shares
of Common Stock. The Investor agrees to act in good faith to minimize its actual damages in any such event and shall provide the Company with a detailed calculation of its actual damages and supporting documentation therefore. Except as provided by
Section 2.05(c) below, such amount may be offset by the Investor against the portion of the Investment Amount otherwise payable by the Investor with respect to such Draw Down Shares or future payment obligations of the Investor with respect to
subsequent Draw Down Notices. No amounts shall be payable in the event the Investor does not incur any actual damages.
(b) The Company may not deliver a Draw Down Notice in the event (1) all prior required deliveries of Draw Down Shares have not been made or (2) the Company has not paid any amounts owed to the Investor pursuant to Section
2.05(a) unless, in connection with such notice, the Company shall have advised the Investor in writing that the Investor may offset the amounts payable by the Company (which amount shall be set forth in such notice and shall be consistent with the
Investor’s calculation thereof) against the portion of the Investment Amount otherwise payable by the Investor with respect to such Draw Down Notice.
(c) In the event the Company, acting in good faith, disputes in writing the determination by the Investor of the amount of its actual damages resulting from the failure of the Company to
deliver Draw Down Shares on a Settlement Date (or deliver such Draw Down Shares at all), the Company may continue to deliver Draw Down Notices for a period of 30 days following such Settlement Date without paying the Investor such damages, whether
in cash or by offset, provided that the aggregate Investment Amount drawn down during such 30-day period does not exceed $6,000,000. Notwithstanding any payment of damages by the Company, whether in cash or by offset, if the Company, acting in good
faith, disputes the determination by the Investor of the amount of its actual damages, such payment shall in no manner constitute an agreement by the Company with the Investor’s calculations. The Company may deliver Draw Down Notices for up to
an additional 90 days from the date of payment (not to extend beyond 120 days from the applicable Settlement Date) while the Company challenges the Investor’s calculations. If the Company and the Investor have not resolved their dispute by such
time as to the amount of actual damages incurred by the Investor, the ability of the Company to deliver Draw Down Notices shall thereafter be suspended until such matter is resolved.
ARTICLE III
As a material inducement to the Investor to enter into this Agreement, the Company hereby represents and
warrants to the Investor that, except as set forth on the Disclosure Schedules delivered by the Company to the Investor concurrently with the execution and delivery of this Agreement, on and as of the date of this Agreement:
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Registration Rights Agreement by the Investor, this Agreement and the Registration Rights Agreement constitute the valid and binding obligations of the Company, enforceable against the Company in
accordance with each of their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and by limitations imposed by law and public policy on indemnification or exculpation).
(a) The execution, delivery and performance by the Company of the Transaction Documents and the consummation of the transactions contemplated thereby to be performed by the Company do not (i) contravene the
applicable provisions of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or Governmental Authority to or by which the Company or any of its respective property or assets is bound, (ii) violate, result in
a breach of or constitute (with due notice or lapse of time or both) a default or give rise to an event of acceleration under any contract, lease, loan or credit agreement, mortgage, security agreement, trust indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to which any of its respective properties or assets is subject, except where such contravention, violation, breach, default or event could not reasonably be expected to result in
a Material Adverse Effect, nor result in the creation or imposition of any lien, security interest, charge or encumbrance of any kind upon any of the properties, assets or Capital Stock of the Company, or (iii) violate any provision of the
organizational and other governing documents of the Company.
(b) No consent, approval, authorization
or order of, or filing or registration with, any court or Governmental Authority or other Person is required to be obtained or made by the Company for the execution, delivery and performance by the Company of the Transaction Documents or the
consummation by the Company of any of the transactions contemplated thereby (other than (i) the registration of the resale of the Common Shares with the Commission and (ii) the filing of a Form D with the Commission and compliance with any state
“blue sky” laws as contemplated by the Registration Rights Agreement), except for those consents or authorizations previously obtained and those filings previously made.
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The Company is not in default of (whether upon the passage of time, the giving of notice or both) its organizational and other governing
documents, or any provision of any security issued by the Company, or of any agreement, instrument or other undertaking to which the Company is a party or by which it or any of its property or assets is bound, or the applicable provisions of any
law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or Governmental Authority to or by which the Company or any of its property or assets is bound, which default, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Except as are fully reflected or reserved against in the Financial Statements and the notes thereto or as set forth in or contemplated by the SEC Reports, there are no liabilities or obligations with respect to the
Company of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) that, either individually or in the aggregate, after taking into account (a) the maximum reasonable amount of any liability that may arise
on account of any litigation or other contingent liability or obligation (other than amounts that would be remote), (b) the earliest reasonable time at which any such liability or obligation may become due and (c) any reasonably expected insurance
recovery with respect thereto, (1) could reasonably be expected to have a Material Adverse Effect and (2) would be required to be set forth or reflected in financial statements prepared in accordance with GAAP.
(c) Since December 31, 2001, except as set forth in the SEC Reports, there has been no development or event, nor any
prospective development or event known to the Company or any of its subsidiaries, or any litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a court or administrative agency of
competent jurisdiction pending or overtly threatened or, to the knowledge of the Company, contemplated, or
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any action of any Governmental Authority, that has had or could reasonably be expected to have a Material Adverse Effect.
SECTION
3.10. Subsidiaries. The Company has no subsidiaries.
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under the Exchange Act, none of the officers, directors, employees or 5% or greater shareholders of the Company is presently a party to any transaction with the Company or any of its subsidiaries
(other than for services as employees, officers and directors) including for transactions for which disclosure pursuant to Regulation S-K would be required, any contract, agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or the advances of money or otherwise requiring payments to for from any such officer, director, employee or shareholder or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any such officer, director, employee or shareholder has a substantial interest or is an officer, director, trustee or partner with an affiliated company.
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Reports not misleading as of the date of the Closing that has not been so disclosed. The Company hereby acknowledges that the Investor is and will be relying on the SEC Reports and the
Company’s representations, warranties and covenants contained herein in making an investment decision with respect to the Common Shares and will be relying thereon (together with future SEC Reports filed with the Commission) in connection with
any transfer of Common Shares.
ARTICLE IV
The
Investor hereby acknowledges, represents, warrants and covenants, to the Company as follows:
(a) The Investor
is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has all requisite power and authority to execute, deliver and perform the terms and provisions of this Agreement and the Registration Rights
Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and thereby to be performed by it.
(b) The execution, delivery and performance by the Investor of this Agreement and the Registration
Rights Agreement and the consummation by the Investor of the transactions contemplated hereby and thereby to be performed by it do not and will not violate any provision of (i) the Investor’s organizational documents or (ii) any law, statute,
rule, regulation, order, writ, injunction, judgment or decree to which the Investor is subject. The Investor has duly executed and delivered this Agreement and has executed and delivered, or concurrently herewith is executing and delivering, the
Registration Rights Agreement. Assuming the due execution hereof and thereof by the Company, each of this Agreement and the Registration Rights Agreement constitutes the valid and binding obligation of the Investor, enforceable against the Investor
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law) and by limitations imposed by law and public policy on indemnification or exculpation).
(c) No consent, approval, authorization or order of, or filing or registration with, any court or Governmental Authority or other Person, is required to be
obtained or made by the Investor for the execution, delivery and performance by the Investor of the Transaction Documents or the consummation by the Investor of any of the transactions contemplated thereby, except for those consents or
authorizations previously obtained and those filings previously made and except for any applicable filings with and approvals from the National Association of Securities Dealers.
(a) The Investor understands that: (i) the offering and sale of the Common Shares to be issued and sold hereunder is intended to be exempt from the registration requirements of the
Securities Act; (ii) the initial offer and sale of the Common Shares issuable hereunder has not been registered under the Securities Act or any other applicable securities laws and such securities may be resold only if registered under the
Securities Act in compliance with the prospectus delivery requirements under the Securities Act and any other applicable securities laws or if an exemption
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from such registration requirements is available; and (iii) the Company is required to register any resale of the Common Shares under the Securities Act and any other applicable securities laws
only to the extent provided in the Registration Rights Agreement.
(b) The Investor represents that the
Common Shares to be acquired by the Investor pursuant to this Agreement are being acquired for its own account and not with a view to, or for sale in connection with, any distribution thereof or (other than the resale of such Common Shares pursuant
to an effective registration statement as contemplated by the Registration Rights Agreement) in violation of the Securities Act or any other securities laws that may be applicable.
(c) The Investor represents that the Investor is not an affiliate (as such term is defined in the Securities Act) of the Company.
(d) The Investor represents that the Investor (i) is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D under the Securities Act, (ii) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Common Stock and is capable of bearing the
economic risks of such investment, including a complete loss of its investment in the Common Shares; (iii) believes that its investment in the Common Shares is suitable for it based upon its objectives and financial needs, and the Investor has
adequate means for providing for its current financial needs and business contingencies and has no present need for liquidity of investment with respect to the Common Shares; and (iv) has not purchased, sold or entered into any put option, short
position or similar arrangement with respect to the Common Shares, and will not, for the term of this Agreement purchase, sell or enter into any such put option, short position or similar arrangement in any manner that violates the provisions of the
Securities Act or the Exchange Act.
(e) The Investor acknowledges that no oral or written statements
or representations have been made to the Investor by or on behalf of the Company in connection with the offering and sale of the Common Shares hereunder other than those set forth in the SEC Reports, or as set forth herein or in the other
Transaction Documents, and the Investor represents that it is not subscribing for the Common Shares as a result of, or in response to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or presented at any seminar or meeting.
(f) The Investor
acknowledges that the Securities Act restricts the transferability of securities, such as the Common Shares, issued in reliance upon the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereunder, and
that, unless sold pursuant to the Registration Statement and in compliance with the prospectus delivery provisions of the Securities Act, the transfer of such Common Shares is restricted.
(g) The Investor has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and
sale of the Common Shares which have been requested by the Investor. The Investor has been afforded the opportunity to ask questions of the Company. The Investor understands that its investment in the Common Shares involves a significant degree of
risk.
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ARTICLE V
The Company will not make any offer to sell, solicit any offer to buy, agree to sell or sell any security or right to acquire any security, except at such time and in such manner so as not to cause the loss of any of the exemptions
for the offer and sale of the Common Shares from the registration requirements under the Securities Act or under the securities or “blue sky” laws of any jurisdiction in which such offer, sale or issuance is made.
The Investor acknowledges that any proposed offer, sale, pledge or other transfer of Common Shares prior to the date that is two (2) years from the date of issuance (or
such other date as may be required pursuant to Rule 144 under the Securities Act (or similar successor provision) as in effect from time to time), in the absence of registration under the Securities Act, is limited. Accordingly, prior to such
passage of time or such registration (and subject to additional limitations if the Investor is deemed to be an “affiliate” of the Company within the meaning of Rule 144), the Common Shares may be offered, sold, pledged or otherwise
transferred only (i) to the Company, (ii) in an offshore transaction in accordance with Rule 904 under the Securities Act, (iii) pursuant to any other exemption from registration provided by the Securities Act, (iv) pursuant to Rule 144 under the
Securities Act or (v) pursuant to an effective registration statement under the Securities Act in compliance with the prospectus delivery requirements under the Securities Act; in the case of any transfer pursuant to clause (ii) or (iii), the
Company shall be entitled to receive an opinion of the selling Investor’s counsel, in form and substance reasonably satisfactory to the Company, to the effect that registration is not required in connection with such disposition.
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Common Stock (less the number of Common Shares previously issued hereunder) to provide for the issuance of the Common Shares to be issued hereunder.
ARTICLE VI
CONDITIONS TO DELIVERY OF DRAW DOWN
NOTICES AND CONDITIONS TO SETTLEMENT
SECTION 6.01. Conditions Precedent to the Obligation of the Company to Issue and Sell Common
Stock. The obligation hereunder of the Company to issue and sell the Draw Down Shares to the Investor incident to each Settlement is subject to the satisfaction, at or before each such Settlement, of each of the conditions set
forth below.
(a) Accuracy of the Investor’s Representation and
Warranties. The representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and as of the date of each such Settlement as though made at each such time (except for
representations and warranties specifically made as of a particular date which shall be true and correct in all material respects as of the date when made).
(b) Performance by the Investor. The Investor shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Settlement.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over the
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matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this Agreement, and no proceeding shall have been commenced that
may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement.
SECTION 6.02. Conditions Precedent to the Right of the Company to Deliver a Draw Down Notice. The right of the Company to deliver a Draw Down Notice hereunder is subject to the
satisfaction, on the date of delivery of such Draw Down Notice, of each of the following conditions:
(a) Effective Registration Statement. (I) As set forth in the Registration Rights Agreement, the Registration Statement shall have previously been declared effective and shall remain
effective and sales of all of the Registrable Securities (including all of the Draw Down Shares issued with respect to all prior Draw Downs and all of the Draw Down Shares expected to be issued in connection with the Draw Down specified by the
current Draw Down Notice (assuming for such purpose that the Purchase Price applicable to such Draw Down is the Floor Price)) may be made by the Investor thereunder, subject to its compliance with the prospectus delivery requirements under the
Securities Act, and (i) neither the Company nor the Investor shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently, or intends or has overtly threatened to do so, (ii) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus
shall exist and (iii) no event specified in Section 2.1(e) of the Registration Rights Agreement shall have occurred and be continuing.
(II) The Company shall not have failed to obtain effectiveness of the Registration Statement within 120 days from the Closing Date, and the Registration Statement, after its initial effectiveness, shall not have
lapsed in effect such that sales of all of the Registrable Securities otherwise cannot be made thereunder (whether by reason of the Company’s failure to amend or supplement the prospectus included therein in accordance with the Registration
Rights Agreement or otherwise) for more than thirty (30) consecutive Trading Days or more than ninety (90) Trading Days in any twelve (12) month period after the Registration Statement becomes effective.
(b) Accuracy of the Company’s Representations and Warranties. The representations and warranties of
the Company shall be true and correct in all material respects as of the date when made and as of the applicable Draw Down Date as though made at such time (except for representations and warranties specifically made as of a particular date which
shall be true and correct in all material respects as of the date when made).
(c) Performance by the
Company. (I) Subject to Section 2.05, the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and the Registration
Rights Agreement to be performed, satisfied or complied with by the Company at or prior to such date, nor shall there have occurred an Event of Default under this Agreement.
(II) The Company shall not have (i) failed to issue shares of Common Stock to the Investor within two days following any Settlement Date as provided herein, (ii)
failed to remove any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate or any shares of Common Stock issued to the Investor as and when required by this Agreement or the Registration Rights
Agreement, (iii) failed to pay any late fee assessed under
19
Section 2.05 ( to the extent that Section 2.05 requires the payment of such fee at such time) or (iv) failed to fulfill its obligations pursuant
to this Agreement (or made any announcement, statement or threat that it does not intend to honor the obligations described in this paragraph), and any such failure shall continue uncured (or any announcement, statement or threat not to honor its
obligations shall not be rescinded in writing) for five (5) days after the Company shall have been notified thereof in writing by the Investor.
(d) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement.
(e) Material Adverse Changes. Since the date of this Agreement, no event that had or is reasonably likely to have a Material Adverse
Effect shall have occurred. For purposes of this Section 6.02(e) any changes resulting from general economic or market conditions (other than those relating to, or arising from, initiation, expansion or escalation of any military conflict or any act
of terrorism) or conditions affecting the biopharmaceutical industry in general or fluctuations in the market price of the Company’s Common Stock shall not be deemed to constitute a “Material Adverse Effect” for purposes hereof.
(f) No Suspension of Trading In or Delisting of Common Stock. The trading of
the Common Stock (including without limitation the Draw Down Shares) shall not have been suspended by the SEC, the Principal Market or the NASD since the immediately preceding Settlement Date or the Closing Date of this Agreement in the event there
has been no Settlement Date and the Common Stock (including without limitation the Draw Down Shares) shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market.
(g) Comfort Letter. The Comfort Letter(s) in respect of the Registration Statement, any Form 10-K
covering the Company’s most recently completed fiscal year for which the Company has filed a Form 10-K or any Form 8-K containing substantial financial information incorporated by reference into the Registration Statement shall have been
delivered prior to the date of delivery of such Draw Down Notice, reasonably satisfactory in form and substance to the Investors, and shall not have been rescinded.
(h) No Defaults. Immediately after consummation of the proposed sale of the Draw Down Shares to the Investor, the Company shall not be in
default of (whether upon the passage of time, the giving of notice or both) its organizational and other governing documents, or any provision of any security issued by the Company, or of any agreement, instrument or other undertaking to which the
Company is a party or by which it or any of its property or assets is bound, or the applicable provisions of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or Governmental Authority to or by which the
Company or any of its property or assets is bound, which default, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(i) Trading Cushion. The Valuation Period for any previous Draw-Down Notice shall have expired.
20
(j) Maximum Share Amount. In no event may the
Company issue a Draw Down Notice to sell (i) an Investment Amount to the extent that the sum of (x) the number of shares of Common Stock represented by the quotient of (a) the requested Investment Amount, divided by (b) the Floor Price set forth in
such Draw Down Notice, plus (y) the cumulative total of all Common Shares issued under all previous Draw Downs effected pursuant to this Agreement, would exceed the Maximum Share Amount or (ii) a number of shares in excess of the Draw Down Share
Limitation.
(k) Prospectus Supplement. A supplement to the prospectus included
in the Registration Statement (the “Prospectus Supplement”), in form and substance to be agreed upon by the parties, setting forth information regarding the Draw Down including, without limitation, the Draw Down Date, the Investment
Amount, the number of shares sold to the Investor in connection with all previous Draw Downs, if not previously disclosed in an SEC Document, and any additional information required by SEC rules and regulations, including Item 507 of Regulation S-K,
shall have been filed with the Commission and sufficient copies thereof delivered to the Investor on the Settlement Date.
(l) Counsel Letter. A letter of outside counsel (or, at the Company’s election in the case of clauses (ii) and (iii), of the Company’s General Counsel) with respect to the Registration
Statement, rendered in form and substance in which “10b-5” letters are typically delivered, shall have been delivered, dated as of the date of delivery, which date shall not be earlier than the later to occur of (i) the effective date of
the Registration Statement, (ii) the effective date of any post-effective amendment to the Registration Statement, (iii) the date of filing by the Company subsequent to the effective date of the Registration Statement of an Annual Report on Form
10-K or Quarterly Report on Form 10-Q.
SECTION 6.03. Documents Required to be Delivered on
each Draw Down Date. The Investor’s obligation to purchase Common Shares pursuant to a Draw Down hereunder shall additionally be conditioned upon the delivery to the Investor on or before the Draw Down Date of a
certificate in form and substance reasonably satisfactory to the Investor, executed by an executive officer of the Company to the effect that all conditions to the delivery of such Draw Down Notice shall have been satisfied as at the date of such
certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Draw Down Notice).
SECTION 6.04. Draw Down Cancellation.
(a) Mechanics of
Draw Down Cancellation. If at any time during a Valuation Period, (i) any of the conditions precedent to a Draw Down set forth in Section 6.02 shall no longer be satisfied as of any date during the Valuation Period, (iii) the Company
discovers that the document referred to in Section 6.03 or the Comfort Letter(s) would not be deliverable in the precise form so delivered if delivered as of such date during the Valuation Period, (iii) the Company reasonably believes an event may
occur which would result in or may require the suspension of the effectiveness of the Registration Statement prior to the applicable Settlement Date or (v) the Company determines reasonably and in good faith that the issuance and sale of Draw Down
Shares during such Valuation Period could reasonably be expected to have a significant adverse effect on the trading or market prices for the Common Stock, then the Company shall cancel the Draw Down (a “Draw Down Cancellation”)
immediately by delivering written notice to the Investor (the “Draw Down Cancellation Notice”), by facsimile (simultaneously sent by e-mail and with telephonic advice of the sending (which requirement will be deemed satisfied by leaving of
recorded message)). The Draw Down Cancellation Notice shall be deemed delivered on (i) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received
21
prior to 9:30 a.m., New York City time, or (ii) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 9:30 a.m., New York City time, on a Trading Day, or at any
time on a day which is not a Trading Day. No Draw Down Cancellation Notice may be deemed delivered on a day that is not a Trading Day. “Draw Down Cancellation Date” shall be the date the Draw Down Cancellation Notice is deemed delivered
pursuant to the preceding sentence.
(b) Effect of Draw Down Cancellation. If a
Draw Down Cancellation Notice has been delivered to the Investor after a Draw Down Date, the Valuation Period for such Draw Down shall end on the Draw Down Cancellation Date. In such event, the Investment Amount relating to such Draw Down shall be
reduced by the Remaining Draw-down Amount as of the Draw Down Cancellation Date. Anytime a Draw Down Cancellation Notice is delivered to the Investor, such Draw Down shall remain effective as to the portion of the Investment Amount not canceled
pursuant to the preceding sentence. Notwithstanding anything to the contrary contained in Section 6.04 or the delivery of a Draw Down Cancellation Notice under Section 6.04(a) or otherwise, the Company shall remain obligated to issue and sell to the
Investor on the terms of this Agreement the cumulative Daily Purchased Share Amounts for each Trading Day in the applicable Valuation Period up to but not including the Draw Down Cancellation Date. The Investor shall promptly notify the Company in
writing of the number of shares which the Company shall be obligated to deliver with respect to any Draw Down Notice that is the subject of a Draw Down Cancellation Notice.
ARTICLE VII
(a) The Company shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver
or trustee for it or for all or substantially all of its property or business; or such a receiver or trustee shall otherwise be appointed;
(b) Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Company ;
(c) The Company shall fail to maintain the listing of the Common Stock on a Principal Market;
(d) The Registration Statement shall not have been declared effective by the Commission on or before
the date which is 90 days from the date of this Agreement; or
(e) a Change of Control shall have
occurred.
22
ARTICLE VIII
NON-DISCLOSURE OF MATERIAL NON-PUBLIC INFORMATION
SECTION 8.01. Non-Disclosure of Material Non-Public Information.
(a) The Company covenants and agrees that it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain from disclosing, any material non-public information to the Investor
without also disseminating such information to the public, unless prior to disclosure of such information the Company identifies such information as being material non-public information to be treated as confidential by the Investor and provides the
Investor and its advisors and representatives with the opportunity to accept or refuse to accept such material non-public information for review.
(b) The Company acknowledges and understands that the Investor is entering into this Agreement and the Registration Rights Agreement at the request of the Company and in good faith reliance
on the Company’s representation set forth in Section 3.05 of this Agreement that the Company has not provided the Investor with any material non-public information that, according to applicable law, rule or regulation, should have been
disclosed publicly by the Company prior to engaging in the transactions contemplated by the Transaction Documents but that has not been so disclosed.
ARTICLE IX
SECTION 9.03. Notices. All notices, demands, requests, consents, approvals or other communications required or permitted to be given hereunder or that are
given with respect to this Agreement shall be in writing and shall be personally served or deposited in the mail, registered or certified, return receipt requested, postage prepaid or delivered by reputable air courier service with charges prepaid,
or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice: (i) if to the Company to: Dendreon Corporation, 0000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel; Facsimile No.: (000) 000-0000 with copies
23
(which shall not constitute notice) to: Xxxxxx Godward LLP, 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000-0000, Attention: Xxxxx Xxxxxxxx; Facsimile No.: (000) 000-0000 and (ii) if to the Investor, BNY
Capital Markets, Inc., 00 Xxx Xxxx (00xx Xxxxx), Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxx, Managing
Director; Facsimile No.: 000-000-0000, with copies (which shall not constitute notice) to: Pillsbury Winthrop LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx X. Xxxxxxx, Xx.; Facsimile No.: 000-000-0000. Notice shall be
deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or confirmed facsimile. Notice otherwise sent as provided herein shall be deemed given on the third business day following the date mailed or
on the next business day following delivery of such notice to a reputable air courier service.
24
If no resolution is reached, the Investor and the Company shall, within forty-five (45) days of the first meeting, attempt to settle the dispute by formal mediation. If the Parties cannot agree upon a mediator and the place
of the mediation, the mediation shall be administered by the American Arbitration Association in New York, New York.
If no resolution is reached in mediation, the dispute shall be resolved by binding arbitration in New York, New York before a three-arbitrator panel, administered by the American Arbitration Association, with limited discovery.
Notwithstanding the foregoing dispute resolution and governing law provisions, the Investor and the Company shall
each retain the right to seek judicial injunctive and other equitable relief where appropriate. In no event shall punitive damages or attorneys’ fees be awardable.
THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
25
| DENDREON CORPORATION | ||
| By: |
/s/ XXXXXX X. XXXXXXXXX | |
| Name: Xxxxxx X. Xxxxxxxxx Title: CFO | ||
| BNY Capital Markets, Inc. | ||
| By: |
/s/ XXXXXX XXXXXXXXX | |
| Name: Xxxxxx Xxxxxxxxx Title: Managing Director | ||
26
EXHIBIT A
DENDREON CORPORATION
DRAW DOWN NOTICE
[Date]
BNY Capital Markets, Inc.
00 Xxx Xxxx, (00xx Xxxxx)
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
Reference is made to the Private Equity Line Financing Agreement between Dendreon Corporation (the “Company”) and BNY Capital Markets, Inc. dated as of June 11,
2002. The Company confirms that all conditions to the delivery of this Draw Down Notice are satisfied as of the date hereof.
Effective
Date of Delivery of Draw Down Notice (determined pursuant to Section 2.03(b)): __________
Number of Days in Valuation
Period: __________
First Date of Valuation Period: __________
Last Date of Valuation Period: __________
Settlement Date: __________
Draw Down Amount (not to exceed Maximum Draw Down Amount): __________
Calculation of Maximum Draw Down Amount: __________
Floor Price Limitation (if none specified, $3.00): __________
| DENDREON CORPORATION | ||
| By: |
_______________________________________ | |
| Name: Title: | ||
27
EXHIBIT B
Form of Opinion of Xxxxxx Godward LLP
1. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
2. The Company’s authorized capital stock consists of (a) eighty million (80,000,000) shares of common stock, and (b) ten million (10,000,000) shares of preferred stock.
3. The Company has the corporate power and authority to execute and deliver the Financing Agreement and the
Registration Rights Agreement. Each of the Financing Agreement and the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights generally, and subject to general
equity principles and to limitations on availability of equitable relief, including specific performance and as rights to indemnification and contribution under the Registration Rights Agreement may be limited under applicable law.
4. The Draw Down Shares have been duly authorized and, when delivered against payment in full as
provided in the Financing Agreement, will be validly issued, fully paid and nonassessable. The Company’s Common Stock is not subject to preemptive rights that will entitle any person to acquire any Draw Down Shares from the Company under the
Company’s Amended and Restated Certificate of Incorporation or Bylaws, and to the best of our knowledge, the Company has not granted any applicable contractual preemptive rights. The Company’s Common Stock is not subject to statutory
preemptive rights that will entitle any Person to acquire any Draw Down Shares from the Company.
5. The execution and delivery of the Financing Agreement and the Registration Rights Agreement, the issuance and sale of the Draw Down Shares in accordance with the terms of the Financing Agreement and the
performance by the Company of its obligations under the Financing Agreement and the Registration Rights Agreement: (i) do not violate any provision of the Company’s Amended and Restated Certificate of Incorporation or Bylaws in effect as of the
date hereof, (ii) do not materially violate, or constitute a material default under any Material Agreement and (iii) do not violate any current governmental statute, rule or regulation in connection with the transactions contemplated by the
Financing Agreement or the Registration Rights Agreement or, to the best of our knowledge, any judgment or order applicable to the Company as of the date hereof, the violation of which would materially and adversely affect the Company, its assets,
financial condition or operations.
28
6. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part of the Company is required in connection with the execution and delivery of the Financing Agreement or the Registration Rights Agreement, or the offer, sale or issuance
of the Draw Down Shares pursuant to the Financing Agreement, or the performance by the Company of its obligations under the Financing Agreement and the Registration Rights Agreement (i) other than any filings which may be required by Regulation D of
the rules and regulations promulgated under the Securities Act or state or foreign securities laws and (ii) other than in connection with the filing and effectiveness of the Registration Statement.
7. Assuming that the sale and issuance of the Draw Down Shares occurred on the date hereof, the offer and sale of
the Draw Down Shares is exempt from the registration requirements of the Securities Act of 1933, as amended, subject to the timely filing of a Form D pursuant to Securities and Exchange Commission Regulation D.
29
Exhibit C
Dendreon / BNY—Draw Down Formula
| Draw Down $ Amount |
$300,000 |
|
||||||||||||||||||||
| Discount |
3.00 |
% |
||||||||||||||||||||
| 5 Day Pricing Period |
||||||||||||||||||||||
| Trading Day |
0 |
1 |
2 |
3 |
4 |
5 |
Total | |||||||||||||||
| Closing Price |
4.00 |
|
|
4.25 |
|
4.50 |
|
4.75 |
|
5.00 |
5.00 |
|||||||||||
| 1 |
Discounted Closing Price |
3.88 |
|
|
4.12 |
|
4.37 |
|
4.61 |
|
4.85 |
4.85 |
||||||||||
| 2 |
Cumulative Pro Rata Daily $ Amount |
|
$60,000.00 |
|
$59,072.16 |
|
$57,877.34 |
$ |
56,288.03 |
|||||||||||||
| 3 |
Daily Purchased Share Amount* |
|
15,464 |
|
14,338 |
|
13,244 |
|
12,210 |
11,001.574 |
|
66,258 | ||||||||||
| 4 |
Daily Purchased $ Amount |
|
$63,711.34 |
|
$62,656.64 |
|
$61,055.96 |
$ |
59,218.43 |
$53,357.63 |
$ |
300,000.00 | ||||||||||
| 5 |
Remaining Draw Down $ Amount |
$300,000 |
|
$ |
236,288.66 |
$ |
173,632.02 |
$ |
112,576.06 |
$ |
53,357.63 |
$0.00 |
||||||||||
(1) |
“Discounted Closing Price” equals Closing Price minus the Discount |
(2) |
“Cumulative Pro Rata Daily $ Amount” equals previous day’s Remaining Draw Down $ Amount divided by Trading Days remaining in the Period
|
(3) |
“Daily Purchased Share Amount” equals Cumulative Pro-Rata Daily $ Amount divided by the previous day’s Discounted Closing Price
|
(4) |
“Daily Purchased $ Amount” equals Daily Purchased Share Amount multiplied by Discounted Closing Price |
(5) |
“Remaining Draw Down $ Amount” equals previous day’s Remaining Draw Down $ Amount minus Daily Purchased $ Amount |
* |
On the last valuation day (Trading Day 5), Daily Purchased Share Amount equals the Remaining Draw Down $ Amount divided by the Discounted Closing Price.
|