SUBSCRIPTION AGREEMENT
Exhibit 1.2
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
1. This Subscription Agreement, including the Terms and Conditions For Purchase of Shares
attached hereto as Annex I (collectively, 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 8,000,000 shares (each a “Share,” and collectively, the “Shares”) of its common stock, par value
$0.01 per share (the “Common Stock”), and warrants (the “Warrant,” collectively, the “Warrants”) to
purchase 8,000,000 shares of Common Stock (and the fractional amount being the “Warrant Ratio”), in
substantially the form attached hereto as Exhibit B, subject to adjustment by the Company’s
Board of Directors, or a committee thereof, for a purchase price of $5.92 per Share (the “Purchase
Price”). The Shares issuable upon exercise of the Warrants are referred to herein as the “Warrant
Shares” and, together with the Shares and the Warrants, are referred to herein as the “Securities”.
3. The offering and sale of the Shares and Warrants (the “Offering”) are being made pursuant
to (1) an effective Registration Statements on Form S-3 (including the combined prospectus
contained therein (the “Base Prospectus”), File Nos. 333-141388 and 333-127521, the “Registration
Statements”) filed by the Company with the Securities and Exchange Commission (the “Commission”),
(2) if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 the
Act), that have been or will be filed with the Commission and delivered to the Investor on or prior
to the date hereof, (3) 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 and (iv) if the Company has
filed an abbreviated registration statement to register additional securities pursuant to Rule
462(b) (the “462(b) Registration Statement”), then any reference herein to the Registration
Statements shall also be deemed to include such 462(b) Registration Statement.
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 and Warrants set forth below for the
aggregate purchase price set forth below. The Shares and Warrants shall be purchased pursuant to
the Terms and Conditions for Purchase of Shares and Warrants 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 agent (the “Placement Agent”) named in the
Prospectus Supplement and that there is no minimum offering amount.
5. The manner of settlement of the Shares included in the Shares and Warrants purchased by the
Investor shall be as follows:
Delivery versus payment (“DVP”) through the Depository Trust Company (“DTC”) (i.e., at
closing, the Company shall issue Shares registered in the Investor’s name and address as
set forth below and released by BNY Mellon Shareowner Services (the “Transfer Agent”)
directly to the account(s) at Lazard Capital Markets LLC (“LCM”) identified by the
Investor; upon receipt of such Shares, LCM shall promptly electronically deliver such shares to the Investor, and simultaneously therewith payment shall be made by LCM by
wire transfer to the Company) NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF
THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
(I) | NOTIFY LCM OF THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND |
(II) | CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT LCM 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 DVP IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS
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 OFFERING
ALTOGETHER.
6. The executed Warrant shall be delivered in accordance with the terms thereof.
7. 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 FINRA member or an Associated Person (as such term
is defined under the FINRA Membership and Registration Rules Section 1011) as of the Closing, and
(c) neither the Investor nor any group of Investors, if any (as identified in a public filing made
with the Commission) of which the Investor is a part in connection with the Offering, 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.”)
8. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Base Prospectus,
dated October 12, 2007, which is a part of the Company’s Registration Statement, the documents
incorporated by reference therein and any free writing prospectus (collectively, the “Disclosure
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Package”), prior to or in connection with the receipt of this Agreement. The Investor
acknowledges that, prior to the delivery of this Agreement to the Company, the Investor will
receive certain additional information regarding the Offering, including pricing information (the
"Offering Information”). Such information may be provided to the Investor by any means permitted
under the Act, including the Prospectus Supplement, a free writing prospectus and oral
communications.
9. No offer by the Investor to buy the Shares and Warrants will be accepted and no part of the
Purchase Price will be delivered to the Company until the Investor has received the Offering
Information and 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 LCM 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 the Investor has been delivered the Offering Information
and this Agreement is accepted and countersigned by or on behalf of the Company.
10. For so long as any Warrants remain outstanding, the Company shall not, in any manner,
issue or sell any rights, warrants or options to subscribe for or purchase Common Stock, or
directly or indirectly convertible into or exchangeable for Common Stock at a price which resets as
a function of market price of the Common Stock, unless the conversion, exchange or exercise price
of any such security cannot be less than the then applicable Exercise Price (as defined in the
Warrants) with respect to the Common Stock into which any Warrant is exercisable.
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Number of Shares: |
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Number of Warrants: |
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Purchase Price Per Share:$ |
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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: April 3, 2008 | ||||||
INVESTOR | ||||||
By: | ||||||
Print Name: | ||||||
Title: | ||||||
Address: | ||||||
Agreed and Accepted
this 3rd day of April, 2008:
this 3rd day of April, 2008:
DENDREON CORPORATION | |||||
By: |
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Title:
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES AND WARRANTS
1. Authorization and Sale of the Shares and Warrants. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of the Shares and Warrants.
2. Agreement to Sell and Purchase the Shares and Warrants; Placement Agent.
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 respective number of Shares and Warrants set forth on the last page of the Agreement to which
these Terms and Conditions for Purchase of Shares and Warrants are attached as Annex I (the
“Signature Page”) for the aggregate purchase price therefor set forth on the Signature Page.
2.2 Investor acknowledges that the Company has agreed to pay Lazard Capital Markets LLC (the
“Placement Agent” or “LCM”) a fee (the “Placement Fee”) in respect of the sale of Shares and
Warrants to the Investor.
2.3 The Company has entered into a Placement Agent Agreement, dated the date hereof (the
“Placement Agreement”), with the Placement Agent 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. The Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor with any information that constitutes or could reasonably
be expected to constitute material, nonpublic information, except as will be disclosed in the
Prospectus and the Company’s Form 8-K filed with the Commission in connection with the Offering.
The Company understands and confirms that the Investor will rely on the foregoing representations
in effecting transactions in securities of the Company.
3. Closings and Delivery of the Shares, Warrants and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares and Warrants (the
“Closing”) shall occur at a place and time (the “Closing Date”) to be specified by the Company and
the Placement Agent, and of which the Investor will be notified in advance by the Placement Agent,
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, (b) the Company shall cause to be delivered to
the Investor a Warrant to purchase a number of whole Warrant Shares determined by multiplying the
number of Shares set forth on the signature page by the Warrant Ratio and rounding down to the
nearest whole number and (c) the aggregate purchase price for the Shares and Warrants being
purchased by the Investor will be delivered by or on behalf of the Investor to the Company.
3.2 Conditions to the Company’s Obligations. (a) The Company’s obligation to issue
and sell the Shares and Warrants to the Investor shall be subject to: (i) the receipt by the
Company of the purchase price for the Shares and Warrants being purchased hereunder as set forth on
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the Signature Page and (ii) 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 and Warrants will be subject to the condition that the Placement Agent 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.
3.3 Delivery of Funds.
Delivery Versus Payment through The Depository Trust Company. The Investor has
elected 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, and the Investor shall confirm that the account or accounts at LCM to be credited
with the Shares being purchased by the Investor have a minimum balance equal to the aggregate
purchase price for the Shares and Warrants being purchased by the Investor.
3.4 Delivery of Shares.
Delivery Versus Payment through The Depository Trust Company. The Investor has
elected 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, and the Investor shall notify LCM of the account or accounts at LCM to be credited
with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver
the Shares to the Investor through DTC directly to the account(s) at LCM identified by Investor and
simultaneously therewith payment shall be made by LCM by wire transfer to the Company.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The Investor (a) 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 and Warrants, including investments in
securities issued by the Company and investments in comparable companies, (b) has answered all
questions on the Signature Page and the Investor Questionnaire 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) in
connection with its decision to purchase the respective number of Shares and Warrants set forth on
the Signature Page, has received and is relying solely upon (i) the Disclosure Package and the
documents incorporated by reference therein and (ii) the Offering Information.
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4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agent that would permit an offering of the Shares and the Warrants, or
possession or distribution of offering materials in connection with the issue of the Securities in
any jurisdiction outside the United States where action for that purpose is required, (b) if the
Investor is outside the United States, it will comply with all applicable laws and regulations in
each foreign jurisdiction in which it purchases, offers, sells or delivers Shares and Warrants or
has in its possession or distributes any offering material, in all cases at its own expense and (c)
the Placement Agent is not authorized to make and has not made any representation, disclosure or
use of any information in connection with the issue, placement, purchase and sale of the Shares and
Warrants, except as set forth or incorporated by reference in the Base Prospectus or the Prospectus
Supplement.
4.3 (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 to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
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 and
Warrants 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 and Warrants.
4.5 Since the date on which the Placement Agent first contacted such Investor about the
Offering, the Investor has not engaged in any purchases or sales of the securities of the Company
(including, without limitation, any Short Sales (as defined herein) involving the Company’s
securities), and has not violated its obligations of confidentiality. The Investor covenants that
it will not engage in any purchases or sales of the securities of the Company (including Short
Sales) or disclose any information about the contemplated offering (other than to its advisors that
are under a legal obligation of confidentiality) 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 Securities 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 Agent,
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
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Shares and Warrants being purchased and the payment therefor. The Placement Agent and Lazard
Fréres & Co. shall be third party beneficiaries with respect to the 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
Attention: Xxxx Xxxx, General Counsel and Secretary
Facsimile: (000) 000-0000
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx, General Counsel and Secretary
Facsimile: (000) 000-0000
with copies to:
Xxxxx Day
0000 Xxxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(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.
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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 and Warrants to such
Investor.
13. Press Release. The Company and the Investor agree that the Company shall issue a press
release announcing the Offering and disclosing all material terms and conditions of 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
Agent pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto.
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