EXHIBIT 10.1
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
November 15, 2006
Gentlemen:
The undersigned (the "Investor") hereby confirms its agreement with you as
follows:
1. This Subscription Agreement (this "Agreement") is made as of the date set
forth below between Dendreon Corporation, a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up
to an aggregate of 9,890,110 shares (the "Shares") of its Common Stock, par
value $0.001 per share (the "Common Stock"), subject to adjustment by the
Company's Board of Directors, or a committee thereof, for a purchase price of
$4.55 per share (the "Purchase Price").
3. The offering and sale of the Shares (the "Offering") is being made pursuant
to (1) an effective Registration Statement on Form S-3 (Registration No.
333-127521) filed by the Company with the Securities and Exchange Commission
(the "Commission") (the "Registration Statement"), which contains the base
prospectus dated October 26, 2005 (the "Base Prospectus"), (2) if applicable,
certain "free writing prospectus" (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended), that have or will be filed with the
Commission and delivered to the Investor on or prior to the date hereof, (3) a
preliminary prospectus supplement to the Base Prospectus dated November 15, 2006
(the "Preliminary Prospectus"), and (4) a Prospectus Supplement (the "Prospectus
Supplement" and together with the Base Prospectus, the "Prospectus") containing
certain supplemental information regarding the Shares and terms of the Offering
that will be filed with the Commission and delivered to the Investor (or made
available to the Investor by the filing by the Company of an electronic version
thereof with the Commission) along with the Company's counterpart to this
Agreement.
4. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor the Shares of Common
Stock set forth below for the aggregate purchase price set forth below. The
Shares shall be purchased pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and incorporated herein by this reference as
if fully set forth herein. The Investor acknowledges that the Offering is not
being underwritten by the placement agents (the "Placement Agents") named in the
Prospectus Supplement and that there is no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall be
determined by such Investor as follows (check one):
[ ] A. Delivery by electronic book-entry at The Depository Trust Company
("DTC"), registered in the Investor's name and address as set forth
below, and released by Mellon Investor Services, LLC, the Company's
transfer agent (the "Transfer Agent"), to the Investor at the Closing.
NO LATER THAN ONE (1) BUSINESS
DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE
COMPANY, THE INVESTOR SHALL:
(I) DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL
AT CUSTODIAN ("DWAC") INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH
ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
(II) REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE
FOLLOWING ACCOUNT:
Citibank N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Account Name: Shearman & Sterling Attorney Trust
Account - XXXX
Account number: 00000000
Swift Code: XXXXXX00
- OR -
[ ] B. Delivery versus payment ("DVP") through DTC (i.e., the Company shall
deliver Shares registered in the Investor's name and address as set
forth below and released by the Transfer Agent to the Investor at the
Closing directly to the account(s) at the Placement Agents identified
by the Investor and simultaneously therewith payment shall be made
from such account(s) to the Company through DTC). NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR
AND THE COMPANY, THE INVESTOR SHALL:
(I) NOTIFY CREDIT SUISSE SECURITIES (USA) LLC OR LAZARD CAPITAL MARKETS
LLC, AS THE CASE MAY BE, OF THE ACCOUNT OR ACCOUNTS AT CREDIT SUISSE
SECURITIES (USA) LLC OR LAZARD CAPITAL MARKETS LLC, AS THE CASE MAY
BE, TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR,
AND
(II) CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT CREDIT SUISSE SECURITIES (USA)
LLC OR LAZARD CAPITAL MARKETS LLC, AS THE CASE MAY BE, TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE
EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED
BY THE INVESTOR.
IT IS THE INVESTOR'S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DWAC OR DVP IN A TIMELY
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MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE
SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER,
THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY
BE EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or persons known to it to be affiliates of the Company, (b) it is
not a NASD member or an Associated Person (as such term is defined under the
NASD Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Shares, acquired, or obtained the right to acquire, 20%
or more of the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
7. The Investor represents that it has received the Preliminary Prospectus, the
documents incorporated by reference therein, and any free writing prospectus
(collectively, the "Disclosure Package"), prior to or in connection with the
receipt of this Agreement along with the Company's counterpart to this
Agreement.
8. No offer by the Investor to buy Shares will be accepted and no part of the
Purchase Price will be delivered to the Company until the Company has accepted
such offer by countersigning a copy of this Agreement, and any such offer may be
withdrawn or revoked, without obligation or commitment of any kind, at any time
prior to the Company (or a Placement Agent on behalf of the Company) sending
(orally, in writing, or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or commitment of any
kind until this Agreement is accepted and countersigned by or on behalf of the
Company.
Number of Shares: ___________________
Purchase Price Per Share: $__________
Aggregate Purchase Price: $__________
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Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
Dated as of: November 15, 2006
----------------------------------------
INVESTOR
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
Address:
-------------------------------
Agreed and Accepted
this 15 day of November, 2006:
DENDREON CORPORATION.
By:
---------------------------------
Title:
------------------------------
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the Shares; Placement Agents.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the
Investor, and the Investor will purchase from the Company, upon the terms and
conditions set forth herein, the number of Shares set forth on the last page of
the Agreement to which these Terms and Conditions for Purchase of Shares are
attached as Annex I (the "Signature Page") for the aggregate purchase price
therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of
Subscription Agreement with certain other investors (the "Other Investors") and
expects to complete sales of Shares to them. The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the "Investors,"
and this Agreement and the Subscription Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the
"Agreements."
2.3 Investor acknowledges that the Company intends to pay Credit Suisse
Securities (USA) LLC and Lazard Capital Markets LLC (the "Placement Agents") a
fee (the "Placement Fee") in respect of the sale of Shares to the Investor.
2.4 The Company has entered into a Placement Agent Agreement, dated November 15,
2006 (the "Placement Agreement"), with the Placement Agents that contains
certain representations, warranties, covenants, and agreements of the Company
that may be relied upon by the Investor, which shall be a third party
beneficiary thereof. A copy of the Placement Agreement is available upon
request.
3. Closings and Delivery of the Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the
"Closing") shall occur at a place and time (the "Closing Date") to be specified
by the Company and the Placement Agents, and of which the Investors will be
notified in advance by the Placement Agents, in accordance with Rule 15c6-1
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). At the Closing, (a) the Company shall cause the Transfer Agent to deliver
to the Investor the number of Shares set forth on the Signature Page registered
in the name of the Investor or, if so indicated on the Investor Questionnaire
attached hereto as Exhibit A, in the name of a nominee designated by the
Investor and (b) the aggregate purchase price for the Shares being purchased by
the Investor will be delivered by or on behalf of the Investor to the Company.
3.2 (a) Conditions to the Company's Obligations. The Company's obligation to
issue and sell the Shares to the Investor shall be subject to: (a) the receipt
by the Company of the purchase price for the Shares being purchased hereunder as
set forth on the Signature Page and
(b) the accuracy of the representations and warranties made by the Investor and
the fulfillment of those undertakings of the Investor to be fulfilled prior to
the Closing Date.
(b) Conditions to the Investor's Obligations. The Investor's obligation to
purchase the Shares will be subject to the accuracy of the representations and
warranties made by the Company and the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing Date, including without limitation,
those contained in the Placement Agreement, and to the condition that the
Placement Agents shall not have: (a) terminated the Placement Agreement pursuant
to the terms thereof or (b) determined that the conditions to the closing in the
Placement Agreement have not been satisfied. The Investor's obligations are
expressly not conditioned on the purchase by any or all of the Other Investors
of the Shares that they have agreed to purchase from the Company.
3.3 Delivery of Funds.
(a) Delivery by Electronic Book-Entry at The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry at DTC, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
remit by wire transfer the amount of funds equal to the aggregate purchase price
for the Shares being purchased by the Investor to the following account
designated by the Company and the Placement Agents pursuant to the terms of that
certain Escrow Agreement (the "Escrow Agreement") dated as of November 15, 2006,
by and among the Company, the Placement Agents and Shearman & Sterling LLP (the
"Escrow Agent"):
Citibank N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Account Name: Shearman & Sterling Attorney Trust Account - XXXX
Account number: 00000000
Swift Code: XXXXXX00
Such funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction, in the
sole judgment of the Placement Agents, of the conditions set forth in Section
3.2(b) hereof. The Placement Agents shall have no rights in or to any of the
escrowed funds, unless the Placement Agents and the Escrow Agent are notified in
writing by the Company in connection with the Closing that a portion of the
escrowed funds shall be applied to the Placement Fee. The Company and the
Investor agree to indemnify and hold the Escrow Agent harmless from and against
any and all losses, costs, damages, expenses and claims (including, without
limitation, court costs and reasonable attorneys fees) ("Losses") arising under
this Section 3.3 or otherwise with respect to the funds held in escrow pursuant
hereto or arising under the Escrow Agreement, unless it is finally determined
that such Losses resulted directly from the willful misconduct or gross
negligence of the Escrow Agent. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for any special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Escrow
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Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
Investor acknowledges that the Escrow Agent acts as counsel to the Placement
Agents, and shall have the right to continue to represent the Placement Agents,
in any action, proceeding, claim, litigation, dispute, arbitration or
negotiation in connection with the Offering, and Investor hereby consents
thereto and waives any objection to the continued representation of the
Placement Agents by the Escrow Agent in connection therewith based upon the
services of the Escrow Agent under the Escrow Agreement, without waiving any
duty or obligation the Escrow Agent may have to any other person.
(b) Delivery Versus Payment through The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through DTC, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
confirm that the account or accounts at Credit Suisse Securities (USA) LLC or
Lazard Capital Markets LLC to be credited with the Shares being purchased by the
Investor have a minimum balance equal to the aggregate purchase price for the
Shares being purchased by the Investor.
3.4 Delivery of Shares.
(a) Delivery by Electronic Book-Entry at The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry at DTC, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
direct the broker-dealer at which the account or accounts to be credited with
the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a Deposit/Withdrawal at Custodian ("DWAC")
instructing Mellon Investor Services, LLC, the Company's transfer agent, to
credit such account or accounts with the Shares by means of an electronic
book-entry delivery. Such DWAC shall indicate the settlement date for the
deposit of the Shares, which date shall be provided to the Investor by the
Placement Agents. Simultaneously with the delivery to the Company by the Escrow
Agent of the funds held in escrow pursuant to Section 3.3 above, the Company
shall direct its transfer agent to credit the Investor's account or accounts
with the Shares pursuant to the information contained in the DWAC.
(b) Delivery Versus Payment through The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through DTC, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
notify Credit Suisse Securities (USA) LLC or Lazard Capital Markets LLC, as
applicable, of the account or accounts at Credit Suisse Securities (USA) LLC or
Lazard Capital Markets LLC, as applicable, to be credited with the Shares being
purchased by such Investor. On the Closing Date, the Company shall deliver the
Shares to the Investor directly to the account(s) at Credit Suisse Securities
(USA) LLC or Lazard Capital Markets LLC, as applicable, identified by Investor
and simultaneously therewith payment shall be made from such account(s) to the
Company through DTC.
4. Representations, Warranties and Covenants of the Investor.
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4.1 The Investor represents and warrants to, and covenants with, the Company
that (a) the Investor is knowledgeable, sophisticated and experienced in making,
and is qualified to make decisions with respect to, investments in shares
presenting an investment decision like that involved in the purchase of the
Shares, including investments in securities issued by the Company and
investments in comparable companies, and has requested, received, reviewed and
considered all information it deemed relevant in making an informed decision to
purchase the Shares, (b) the Investor has answered all questions on the
Signature Page and the Investor Questionnaire for use in preparation of the
Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) the
Investor, in connection with its decision to purchase the number of Shares set
forth on the Signature Page, is relying only upon the Disclosure Package, the
documents incorporated by reference therein and the representations and
warranties of the Company contained herein.
4.2 The Investor acknowledges, represents and agrees that no action has been or
will be taken in any jurisdiction outside the United States by the Company or
any Placement Agent that would permit an offering of the Shares, or possession
or distribution of offering materials in connection with the issue of the Shares
in any jurisdiction outside the United States where action for that purpose is
required. Each Investor outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense. The
Placement Agents are not authorized to make and have not made any representation
or use of any information in connection with the issue, placement, purchase and
sale of the Shares, except as set forth or incorporated by reference in the Base
Prospectus or the Prospectus Supplement.
4.3 The Investor further represents and warrants to, and covenants with, the
Company that (a) the Investor has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (b) this Agreement constitutes a 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
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Investors herein may be
legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus or
any other materials presented to the Investor in connection with the purchase
and sale of the Shares constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Shares.
4.5 Each Investor represents, warrants and agrees that, since the earlier to
occur of (i) the date on which either Placement Agent first contacted such
Investor about the Offering and (ii) the date of this Agreement, it has not
engaged in any transactions in the securities of the Company (including, without
limitation, any Short Sales involving the Company's securities).
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Each Investor covenants that it will not engage in any transactions in the
securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed. Each
Investor agrees that it will not use any of the Shares acquired pursuant to this
Agreement to cover any short position in the Common Stock if doing so would be
in violation of applicable securities laws. For purposes hereof, "Short Sales"
include, without limitation, all "short sales" as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against
the box, and all types of direct and indirect stock pledges, forward sales
contracts, options, puts, calls, short sales, swaps, "put equivalent positions"
(as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements
(including on a total return basis), and sales and other transactions through
non-US broker dealers or foreign regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party
Beneficiary. Notwithstanding any investigation made by any party to this
Agreement or by the Placement Agents, all covenants, agreements, representations
and warranties made by the Company and the Investor herein will survive the
execution of this Agreement, the delivery to the Investor of the Shares being
purchased and the payment therefor. The Placement Agents and Lazard Freres & Co.
LLC shall be third party beneficiaries with respect to representations,
warranties and agreements of the Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder
will be in writing, will be mailed (a) if within the domestic United States by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, or by facsimile or (b) if delivered from
outside the United States, by International Federal Express or facsimile, and
will be deemed given (i) if delivered by first-class registered or certified
mail domestic, three business days after so mailed, (ii) if delivered by
nationally recognized overnight carrier, one business day after so mailed, (iii)
if delivered by International Federal Express, two business days after so mailed
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
will be delivered and addressed as follows:
(a) if to the Company, to:
Dendreon Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with copies to:
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
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(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and will not be deemed to be part of
this Agreement.
9. Severability. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein will not in any way
be affected or impaired thereby.
10. Governing Law. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of New York, without giving
effect to the principles of conflicts of law that would require the application
of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts,
each of which will constitute an original, but all of which, when taken
together, will constitute but one instrument, and will become effective when one
or more counterparts have been signed by each party hereto and delivered to the
other parties. The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such
Investor's receipt of the Company's counterpart to this Agreement, together with
the Prospectus Supplement (or the filing by the Company of an electronic version
thereof with the Commission), shall constitute written confirmation of the
Company's sale of Shares to such Investor.
13. Press Release. The Company and the Investor agree that the Company shall
issue a press release announcing the Offering prior to the opening of the
financial markets in New York City on the business day immediately after the
date hereof.
14. Termination. In the event that the Placement Agreement is terminated by the
Placement Agents pursuant to the terms thereof, this Agreement shall terminate
without any further action on the part of the parties hereto.
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EXHIBIT A
DENDREON CORPORATION
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in. You may use a
nominee name if appropriate: ______________________________________________
2. The relationship between the Investor and the registered holder listed in
response to item 1 above: _________________________________________________
3. The mailing address of the registered holder listed in response to item 1
above: ____________________________________________________________________
4. The Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above: ____________________________
5. Name of DTC Participant (broker-dealer at which the account or accounts to
be credited with the Shares are maintained): ______________________________
6. DTC Participant Number: ___________________________________________________
7. Name of Account at DTC Participant being credited with the Shares: ________
8. Account Number at DTC Participant being credited with the Shares: _________
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