Dendreon Corporation Common Stock and Warrants PLACEMENT AGENT AGREEMENT dated April 3, 2008 LAZARD CAPITAL MARKETS LLC
Exhibit 1.1
Execution Version
Dendreon Corporation
Common Stock and Warrants
dated April 3, 2008
LAZARD CAPITAL MARKETS LLC
April 3, 2008
Lazard Capital Markets LLC
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Ladies and Gentlemen:
Introductory. Dendreon Corporation, a Delaware corporation (the “Company”), proposes,
pursuant to the terms of this Placement Agent Agreement (this “Agreement”) and the
Subscription Agreements in the form of Schedule A attached hereto (the “Subscription
Agreements”) entered into with the purchasers identified therein (the “Purchasers”), to
sell to the Purchasers up to an aggregate of 8,000,000 shares (the “Common Stock Shares”)
of common stock, par value $0.001 per share (the “Common Stock”), of the Company and
warrant(s) to purchase 8,000,000 shares of Common Stock (the “Warrants”). The terms and
conditions of the Warrant(s) are set forth in the form of Exhibit A attached hereto. The
Company hereby confirms that Lazard Capital Markets LLC acted as Placement Agent (“LCM,” or
the “Placement Agent”) in accordance with the terms and conditions hereof
Section 1. Agreement to Act as Placement Agent; Placement of Common Stock and Warrants. On
the basis of the representations, warranties and agreements of the Company herein contained, and
subject to all the terms and conditions of this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive agent to
solicit offers for the purchase of all or part of the Common Stock and Warrants from the
Company in connection with the proposed offering of all or part of the Common Stock and
Warrants (the “Offering”). Until the Closing Date, the Company shall not, without the
prior consent of the Placement Agent, solicit or accept offers to purchase the Common Stock or
Warrants otherwise than through the Placement Agent. LCM may utilize the expertise of Lazard
Frères & Co. LLC in connection with LCM’s placement agent activities; provided however, that
the Company shall only compensate the Placement Agent for their services hereunder, and not
any third parties acting on their behalf, other than as set forth in Section 5 of this
Agreement.
(b) The Placement Agent agrees, as agent of the Company, to use its best efforts to
solicit offers to purchase the Common Stock and Warrants from the Company on the terms and
subject to the conditions set forth in the Prospectus (as defined below). The Placement Agent
has no authority to bind the Company with respect to any prospective offer to purchase the
Common Stock and Warrants. The Placement Agent shall use commercially reasonable best efforts
to assist the Company in obtaining performance by each Purchaser whose offer to purchase
Common Stock and Warrants has been solicited by the Placement Agent and accepted by the
Company, but the Placement Agent shall not, except as otherwise provided in this Agreement,
have any liability to the Company in the event any
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such purchase is not consummated for any reason. Under no circumstances will the
Placement Agent be obligated to purchase any Common Stock and Warrants for its own account
and, in soliciting purchases of Common Stock and Warrants, the Placement Agent shall act
solely as the Company’s agent and not as principal. Notwithstanding the foregoing and except
as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agent
(or its affiliates) may, solely at its discretion and without any obligation to do so,
purchase Common Stock and Warrants as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of Common Stock
and Warrants may be solicited by the Placement Agent as agent for the Company at such times
and in such amounts as the Placement Agent deems advisable. The Placement Agent shall
communicate to the Company, orally or in writing, each reasonable offer to purchase Common
Stock and Warrants received by it as agent of the Company. The Company shall have the sole
right to accept offers to purchase the Common Stock and Warrants and may reject any such
offer, in whole or in part. The Placement Agent shall have the right, in its discretion
reasonably exercised, without notice to the Company, to reject any offer to purchase Common
Stock and Warrants received by it, in whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein.
(d) The Common Stock Shares are being sold to the Purchasers at a price of $5.92 per
share, with one Warrant to purchase 1.00 share of common stock delivered for each share of
Common Stock purchased. The purchases of the Common Stock and Warrants by the Purchasers
shall be evidenced by the execution of Subscription Agreements by each of the parties thereto.
(e) As compensation for services rendered, on the Closing Date, the Company shall pay to
the Placement Agent by wire transfer of immediately available funds to an account or accounts
designated by the Placement Agent, an aggregate amount equal to two and on-half percent (2.5%)
of the gross proceeds received by the Company from the sale of the Common Stock and Warrants
on such Closing Date.
(f) No Common Stock and Warrants which the Company has agreed to sell pursuant to this
Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for,
or sold by the Company, until such Common Stock and Warrants shall have been delivered to the
Purchaser thereof against payment by such Purchaser. If the Company shall default in its
obligations to deliver Common Stock and Warrants to a Purchaser whose offer it has accepted,
the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or
damage arising from or as a result of such default by the Company.
Section 2. Representations and Warranties of the Company. The Company hereby represents,
warrants and covenants to the Placement Agent and the Purchasers as follows:
(a) The Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), and published rules and
regulations thereunder (the “Rules and Regulations”) adopted by the Securities and
Exchange Commission (the “Commission”) Registration Statements (as hereinafter
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defined) on Form S-3 (File Nos. 333-141388 and 333-127521) filed by the Company with the
Commission, that have been declared effective (such dates, the “Effective Dates”),
including a combined base prospectus relating to the securities registered pursuant to such
Registration Statements (the “Base Prospectus”), and such amendments and supplements
thereto as may have been required to the date of this Agreement. The term “Registration
Statements” as used in this Agreement means the registration statements (including all
exhibits, financial schedules and all documents and information deemed to be a part thereof
pursuant to Rule 430A of the Rules and Regulations), as amended and/or supplemented to the
date of this Agreement, including the Base Prospectus. The Registration Statements are
effective under the Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statements or suspending or preventing the use of the
Prospectus has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are threatened by the Commission. The
Company, if required by the Rules and Regulations of the Commission, will file the Prospectus
(as defined below), with the Commission pursuant to Rule 424(b) of the Rules and Regulations.
The term “Prospectus” as used in this Agreement means the Prospectus, in the form in
which filed as part of the Registration Statements as of the Effective Dates, except that if
any revised prospectus or prospectus supplement shall be provided to the Placement Agent by
the Company for use in connection with the offering and sale of the Common Stock and the
Warrants which differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first provided to the
Placement Agent for use. Any reference herein to the Registration Statements or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), on or before the date of the Prospectus, and
any reference herein to the terms “amend,” “amendment,” or “supplement” with respect to the
Registration Statements or the Prospectus shall be deemed to refer to and include (i) the
filing of any document under the Exchange Act after the Effective Dates, or the date of the
Prospectus, as the case may be, which is incorporated by reference therein and (ii) any such
document so filed. If the Company has filed an abbreviated registration statement to register
additional securities pursuant to Rule 462(b) under the Rules (the “462(b) Registration
Statement”), then any reference herein to the Registration Statements shall also be deemed
to include such 462(b) Registration Statement.
(b) As of the Initial Sale Time (as defined below) and as of the Closing Date, neither
(i) any General Use Free Writing Prospectus (as defined below) issued at or prior to the
Initial Sale Time, and the Pricing Prospectus (as defined below) and the information included
on Schedule A hereto, all considered together (collectively, the “Disclosure
Package”), (ii) any individual Limited Use Free Writing Prospectus (as defined below) nor
(iii) the electronic road show (as defined in Rule 433(h)(5) of the Rules and Regulations)
that has been made available without restriction to any person, when considered together with
the Disclosure Package, included or will include, any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in
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the light of the circumstances under which they were made, not misleading As used in
this paragraph (b) and elsewhere in this Agreement:
“Initial Sale Time” means 7:00 A.M., New York time, on the date of this Agreement.
“Pricing Prospectus” means the Base Prospectus, as amended and supplemented immediately prior
to the Initial Sale Time, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Rules and Regulations relating to the Common Stock and Warrants in the form
filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule A to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(c) No order preventing or suspending the use of, any Issuer Free Writing Prospectus or
the Prospectus relating to the Offering has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act has been instituted or
threatened by the Commission.
(d) At the time the Registration Statements became effective, at the date of this
Agreement and at the Closing Date, the Registration Statements conformed and will conform in
all material respects to the requirements of the Securities Act and the Rules and Regulations
and did not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading; the Prospectus, at the time the Prospectus was issued and at the Closing Date,
conformed and will conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(e) Each Issuer Free Writing Prospectus, if any, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Common Stock and
Warrants or until any earlier date that the Company notified or notifies the Placement Agent
as described in Section 5(e), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the Registration
Statements, Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified, or includes an untrue statement of a material fact or omitted or would
omit to state a material fact required to be stated therein or necessary in order to
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make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading.
(f) The documents incorporated by reference in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable and the rules and
regulations of the Commission thereunder, and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus, when such documents become effective
or are filed with the Commission, as the case may be, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(g) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the Offering other than the Prospectus and other
materials, if any, permitted under the Securities Act and consistent with Section 5(b)
below. The Company will file with the Commission all Issuer Free Writing Prospectuses, if
any, in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and
Regulations.
(h) Company Not Ineligible Issuer. At the earliest time after the filing of the
Registration Statement relating to the Common Stock and Warrants that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities Act, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of
the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
(i) The Placement Agent Agreement. This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable against the
Company in accordance with its terms, subject to the effect of public policy on the
enforceability of provisions relating to indemnification or contribution.
(j) The Subscription Agreements. The Company has the full right, power and authority to
enter into each of the Subscription Agreements and to perform and to discharge its obligations
hereunder and thereunder; and each of the Subscription Agreements has been duly authorized and
when executed and delivered by the Company, will constitute a valid and binding obligation of
the Company enforceable in accordance with its terms.
(k) Authorization of the Common Stock. The shares of Common Stock to be issued and sold
by the Company to the Purchasers hereunder and under the Subscription Agreements and the shares of Common Stock issuable upon the exercise of the Warrants
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(the “Warrant Shares”) have been duly and validly authorized and the Common
Stock, when issued and delivered against payment therefor as provided herein and in the
Subscription Agreements and the Warrant Shares, when issued and delivered against payment
therefore as provided in the Warrants, will be duly and validly issued, fully paid and
non-assessable and free of any preemptive or similar rights and will conform to the
description thereof contained in the Disclosure Package and the Prospectus.
(l) No Transfer Taxes. There are no transfer taxes or other similar fees or charges
under federal law or the laws of any state, or any political subdivision thereof, required to
be paid in connection with the execution and delivery of this Agreement or the Subscription
Agreements or the issuance by the Company or sale by the Company of the Common Stock and
Warrants.
(m) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement
and the Subscription Agreement(s).
(n) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package:
(i) there has been no material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition, financial or otherwise, or
in the earnings, business, properties, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and the Subsidiary, (as
defined below) considered as one entity (any such change is called a “Material Adverse
Change”); (ii) the Company and the Subsidiary, considered as one entity, have not incurred
any material liability or obligation, indirect, direct or contingent, nor entered into any
material transaction or agreement; and (iii) there has been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends paid to the Company, the
Subsidiary on any class of capital stock or repurchase or redemption by the Company or the
Subsidiary of any class of capital stock.
(o) Independent Registered Public Accounting Firm. Ernst & Young LLP, who have expressed
their opinion with respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) and supporting schedules filed with the Commission as a
part of the Registration Statement and included in the Disclosure Package and the Prospectus,
are an independent public accounting firm with respect to the Company as required by the
Securities Act and the Exchange Act and the applicable published rules and regulations
thereunder.
(p) Preparation of the Financial Statements. The financial statements filed with the
Commission as a part of or incorporated by reference in the Registration Statement and
included or incorporated by reference in the Disclosure Package and the Prospectus present
fairly the consolidated financial position of the Company and the Subsidiary as of and at the
dates indicated and the results of their operations and cash flows for the periods specified.
The supporting schedules included or incorporated by reference in the
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Registration Statement present fairly the information required to be stated therein.
Such financial statements and supporting schedules comply as to form with the applicable
accounting requirements of the Securities Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto. No other financial
statements or supporting schedules are required to be included or incorporated by reference in
the Registration Statement.
(q) Incorporation and Good Standing of the Company and the Subsidiary. Each of the
Company and the Subsidiary has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation and has corporate
power and authority to own or lease, as the case may be, and operate its properties and to
conduct its business as described in the Disclosure Package and the Prospectus and, in the
case of the Company, to enter into and perform its obligations under this Agreement. Each of
the Company and the Subsidiary is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a material adverse effect, on the condition,
financial or otherwise, or on the earnings, business, properties, operations or prospects,
whether or not arising from transactions in the ordinary course of business, of the Company
and the Subsidiary, considered as one entity (a “Material Adverse Effect”). All of
the issued and outstanding shares of capital stock of the subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable and are owned by the Company directly,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. The
Company does not own or control, directly or indirectly, any corporation, association or other
entity other than the Subsidiary.
(r) Capitalization and Other Capital Stock Matters. The Common Stock conforms in all
material respects to the description thereof contained in the Disclosure Package and the
Prospectus. All of the issued and outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the outstanding shares of Common
Stock were issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or the Subsidiary other than those
accurately described in the Disclosure Package and the Prospectus. The description of the
Company’s stock option, stock purchase and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth or incorporated by reference in each of the
Disclosure Package and the Prospectus accurately and fairly presents the information required
to be shown with respect to such plans, arrangements, options and rights.
(s) Listing. The Common Stock will be listed at or prior to closing on the Nasdaq Global
Market, subject only to official notice of issuance.
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(t) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor the Subsidiary is (i) in violation or in default (or, with
the giving of notice or lapse of time, would be in default) (“Default”) under its
charter or by-laws, (ii) in Default under any indenture, mortgage, loan or credit agreement,
deed of trust, note, contract, franchise, lease or other agreement, obligation, condition,
covenant or instrument to which the Company or such Subsidiary is a party or by which it may
be bound, or to which any of the property or assets of the Company or the Subsidiary is
subject (each, an “Existing Instrument”), or (iii) in violation of any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the Company
or such Subsidiary or any of its properties, as applicable, except with respect to clauses
(ii) and (iii) only, for such Defaults or violations as would not, individually or in the
aggregate, have a Material Adverse Effect. The execution, delivery and performance of this
Agreement and the Subscription Agreement(s) by the Company, the issue and sale of the Common
Stock and Warrants by the Company and the consummation of the transactions contemplated hereby
and thereby, by the Disclosure Package and by the Prospectus (i) have been duly authorized by
all necessary corporate action and will not result in any Default under the charter or by-laws
of the Company or the Subsidiary, (ii) will not conflict with or constitute a breach of, or
Default under, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or the Subsidiary pursuant to, or require the consent of
any other party to, any Existing Instrument, and (iii) will not result in any violation of any
statute, law, rule, regulation, judgment, order or decree applicable to the Company or the
Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or the Subsidiary or any of its or
their properties. No consent, approval, authorization or other order of, or registration or
filing with, any court or other governmental or regulatory authority or agency is required for
execution, delivery and performance of this Agreement and the Subscription Agreement(s) by the
Company, the offer or sale of the Common Stock and Warrants or the consummation of the
transactions contemplated hereby or thereby, by the Disclosure Package and by the Prospectus,
except such as have been obtained or made by the Company and are in full force and effect
under the Securities Act, applicable state securities or blue sky laws.
(u) No Material Actions or Proceedings. There are no legal or governmental actions,
suits or proceedings (collectively, “Proceedings”), including without limitations, any
proceedings pending before the United States Food and Drug Administration (“FDA”) or
comparable federal, state, local or foreign governmental bodies (it being understood that the
interaction between the Company and the FDA and such comparable governmental bodies relating
to the clinical development and product approval process shall not be deemed proceedings for
purposes of this representation) pending or, to the best of the Company’s knowledge,
threatened (i) against or affecting the Company or the Subsidiary, (ii) which has as the
subject thereof any officer or director of, or property owned or leased by, the Company or the
Subsidiary or (iii) relating to environmental or discrimination matters, where in any such
case (A) there is a reasonable possibility that such action, suit or proceeding might be
determined adversely to the Company or the Subsidiary and (B) any such action, suit or
proceeding, if so determined adversely, would reasonably be expected
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to have a Material Adverse Effect or adversely affect the consummation of the
transactions contemplated by this Agreement and the Subscription Agreements. The descriptions
of Proceedings contained in the General Disclosure Package and the Prospectus are accurate and
complete in all material respects.
(v) Labor Matters. No labor problem or dispute with the employees of the Company or the
Subsidiary exists or, to the Company’s knowledge, is threatened or imminent.
(w) Intellectual Property Rights. The Company and the Subsidiary own, possess, license
or have other rights to use, on reasonable terms, all patents, patent applications, trade and
service marks, trade and service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property (collectively,
the “Intellectual Property”) necessary for the conduct of the Company’s business as
now conducted or as proposed in each of the Disclosure Package and the Prospectus to be
conducted. Except as set forth in the Disclosure Package and the Prospectus (a) no party has
been granted an exclusive license to use any portion of such Intellectual Property owned by
the Company; (b) to the Company’s knowledge, there is no material infringement by third
parties of any such Intellectual Property owned by or exclusively licensed to the Company; (c)
to the Company’s knowledge, there is no pending or threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any material Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such
claim; (d) there is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; and (e) there is
no pending or threatened action, suit, proceeding or claim by others that the Company’s
business as now conducted infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim.
(x) All Necessary Permits, etc. The Company and the Subsidiary possess such valid and
current licenses, certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor the Subsidiary has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such license,
certificate, authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could have a Material Adverse Effect.
(y) Title to Properties. The Company and the Subsidiary have good and marketable title
to all the properties and assets reflected as owned in the financial statements referred to in
Section 2(p) above (or elsewhere in the Disclosure Package and the Prospectus), in each case
free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and
other defects, with the exception of assets subject to capitalized lease obligations, and
except such as do not materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property by the Company
or the Subsidiary. The real property,
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improvements, equipment and personal property held under lease by the Company or the
Subsidiary are held under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company or such Subsidiary.
(z) Tax Law Compliance. The Company and the Subsidiary have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments,
fines or penalties as may be being contested in good faith and by appropriate proceedings, or
such taxes, assessments, fines or penalties that could not reasonably be expected to have a
Material Adverse Effect. The Company has made appropriate provisions in the applicable
financial statements referred to in Section 2(p) above in respect of all federal, state, local
and foreign income and franchise taxes for all current or prior periods as to which the tax
liability of the Company or the Subsidiary has not been finally determined.
(aa) Company Not an “Investment Company”. The Company is not, and after receipt of
payment for the Common Stock and Warrants and the application of the proceeds thereof as
contemplated under the caption “Use of Proceeds” in the Prospectus will not be, required to
register as an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(bb) Insurance. Each of the Company and the Subsidiary is insured by recognized,
financially sound and reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed adequate and customary for their
businesses. All policies of insurance and fidelity or surety bonds insuring the Company or
the Subsidiary or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Company and the Subsidiary are in compliance with the terms of
such policies and instruments in all material respects; and there are no claims by the Company
or the Subsidiary under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause. The Company has no
reason to believe that it or any subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not have a Material Adverse Effect.
(cc) No Restrictions on Dividends. The Subsidiary is not currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any other distribution on
its capital stock, from repaying to the Company any loans or advances to the Subsidiary from
the Company or from transferring any of the Subsidiary’s property or assets to the Company,
except as described in or contemplated by the Disclosure Package and the Prospectus.
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(dd) No Price Stabilization or Manipulation. The Company has not taken and will not
take, directly or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Common Stock and Warrants. The Company acknowledges that
the Placement Agent may engage in passive market making transactions in the Common Stock and
Warrants on the Nasdaq Global Market in accordance with Regulation M under the Exchange Act.
(ee) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or the Subsidiary or any other person required to be
described in the Disclosure Package or the Prospectus that have not been described as
required.
(ff) Internal Controls and Procedures. The Company maintains (i) effective internal
control over financial reporting as defined in Rule 13a-15 under the Exchange Act, and (ii) a
system of internal accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(gg) No Material Weakness in Internal Controls. Since the end of the Company’s most
recent audited fiscal year, there has been (i) to the Company’s knowledge, no material
weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal control over financial reporting that
has materially adversely affected, or is reasonably likely to materially adversely affect, the
Company’s internal control over financial reporting.
(hh) Earnings Statement. The Company agrees with the Placement Agent to make generally
available to its stockholders as soon as practicable, but in any event not later than
16 months after the date hereof, an earnings statement covering a period of at least 12 months
beginning after the date hereof and otherwise satisfying Section 11(a) of the Securities Act.
(ii) No Unlawful Contributions or Other Payments. Neither the Company nor the Subsidiary
nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or the Subsidiary is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money,
or other property, gift, promise to give, or authorization of the giving of anything of value
to any “foreign official” (as such term is defined in the FCPA) or any foreign political party
or official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Company, the Subsidiary
11
and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(jj) Compliance with Environmental Laws. Except as otherwise disclosed in the Disclosure
Package and the Prospectus (i) neither the Company nor the Subsidiary is in violation of any
federal, state, local or foreign law, regulation, order, permit or other requirement relating
to pollution or protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions, discharges, releases
or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products (collectively, “Materials of
Environmental Concern”), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, “Environmental Laws”), which violation includes,
but is not limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or the Subsidiary under applicable
Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the
Company or the Subsidiary received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the Company or the
Subsidiary is in violation of any Environmental Law, except as would not, individually or in
the aggregate, have a Material Adverse Effect; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation with respect to which
the Company has received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs, governmental responses
costs, natural resources damages, property damages, personal injuries, attorneys’ fees or
penalties arising out of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location owned, leased or
operated by the Company or the Subsidiary, now or in the past (collectively,
“Environmental Claims”), pending or, to the best of the Company’s knowledge,
threatened against the Company or the Subsidiary or any person or entity whose liability for
any Environmental Claim the Company or the Subsidiary has retained or assumed either
contractually or by operation of law, except as would not, individually or in the aggregate,
have a Material Adverse Effect; (iii) to the best of the Company’s knowledge, there are no
past, present or anticipated future actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result in a violation
of any Environmental Law, require expenditures to be incurred pursuant to Environmental Law,
or form the basis of a potential Environmental Claim against the Company or the Subsidiary or
against any person or entity whose liability for any Environmental Claim the Company or the
Subsidiary has retained or assumed either contractually or by operation of law, except as
would not, individually or in the aggregate, have a Material Adverse Effect; and (iv) neither
the
12
Company nor the Subsidiary is subject to any pending or threatened proceeding under
Environmental Law to which a governmental authority is a party and which is reasonably likely
to result in monetary sanctions of $100,000 or more.
(kk) ERISA Compliance. None of the following events has occurred or exists: (i) a
failure to fulfill the obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with respect
to a Plan, determined without regard to any waiver of such obligations or extension of any
amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S.
Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state
governmental agency or any foreign regulatory agency with respect to the employment or
compensation of employees by the Company that would reasonably be expected to have a material
adverse effect on the Company; (iii) any breach of any contractual obligation, or any
violation of law or applicable qualification standards, with respect to the employment or
compensation of employees of the Company that could have a Material Adverse Effect. None of
the following events has occurred or is reasonably likely to occur: (i) a material increase
in the aggregate amount of contributions required to be made to all Plans in the current
fiscal year of the Company compared to the amount of such contributions made in the Company’s
most recently completed fiscal year; (ii) a material increase in the Company’s “accumulated
post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting
Standards 106) compared to the amount of such obligations in the Company’s most recently
completed fiscal year; (iii) any event or condition giving rise to a liability under Title IV
of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or
more employees or former employees of the Company related to their employment that could have
a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a
plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect
to which the Company may have any liability.
(ll) No Outstanding Loans or Other Indebtedness. There are no outstanding loans,
advances (except normal advances for business expenses in the ordinary course of business) or
guarantees or indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company, except as disclosed in the Disclosure Package and the Prospectus.
(mm) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. There is and has been no failure on the part of the
Company and, to the Company’s knowledge, any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules and regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(nn) Subsidiary. Dendreon San Diego LLC is the only subsidiary of the Company (the
“Subsidiary”).
13
(oo) Statistical Data. Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical data included in the Disclosure Package and the
Prospectus is not based on or derived from sources that are reliable and accurate in all
material respects.
(pp) Immunity from Jurisdiction. Neither the Company nor the Subsidiary nor any of their
properties or assets has any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of New York.
(qq) Compliance with Regulatory Authorities. The clinical, pre-clinical and other
studies and tests conducted by or on behalf of or sponsored by the Company or the Subsidiary
that are described in the Disclosure Package and the Prospectus or the results of which are
referred to in the Disclosure Package and the Prospectus were and, if still pending, are being
conducted in accordance, in all material respects, with standard medical and scientific
research procedures; the descriptions in the Disclosure Package and the Prospectus of the
results of such studies and tests are accurate and complete in all material respects and
fairly present the data derived from such studies and tests; the Company and the Subsidiary
have no knowledge of any other studies or tests conducted by third parties the results of
which contest or contradict, and have no knowledge of any other studies or tests conducted by
third parties that unsuccessfully attempted to replicate, the results described or referred to
in the Prospectus; except to the extent disclosed in the Disclosure Package and the
Prospectus, the Company and the Subsidiary have operated and currently are in compliance in
all material respects with all applicable rules, regulations and policies of the U.S. Food and
Drug Administration (the “FDA”) and comparable drug regulatory agencies outside of the
United States (collectively, the “Regulatory Authorities”); and except to the extent
disclosed in the Disclosure Package and the Prospectus, since the Company’s fiscal year ending
December 31, 2002, the Company has not received any notices or other correspondence from the
Regulatory Authorities or any other governmental agency requiring the termination or
suspension of any clinical or pre-clinical study or test sponsored by the Company or the
Subsidiary and that is described in the Disclosure Package and the Prospectus or the results
of which are referred to in the Disclosure Package and the Prospectus.
(rr) Broker Fees. Neither the Company nor the Subsidiary is a party to any contract,
agreement or understanding with any person that would give rise to a valid claim against the
Company or the Placement Agent for a brokerage commission, finder’s fee or like payment in
connection with the Offering or any transaction contemplated by this Agreement or the
Subscription Agreements.
(ss) Compliance and Listing of the Common Stock. The Company is subject to and in
compliance in all material respects with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act. The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and is listed on the Nasdaq Global Market, and the Company has taken no action
designed to, or reasonably likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq Global
Market, nor has the Company received any notification that the
14
Commission or the Financial Industry Regulatory Authority, Inc. (“FINRA”) is
contemplating terminating such registration or listing. Other than the Company’s Supplemental
Listing Application with respect to the Common Stock, no consent, approval, authorization or
order of, or filing, notification or registration with, the Nasdaq Global Market is required
for the listing and trading of the Common Stock on the Nasdaq Global Market.
(tt) Nasdaq Compliance. The Company is in compliance with all applicable corporate
governance requirements set forth in the Nasdaq Market Place Rules that are currently in
effect.
(uu) Forward Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in either the
General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(vv) Neither the Company nor any of its affiliates (within the meaning of FINRA Conduct
Rule 2720(b)(1)(a)) directly or indirectly controls, is controlled by, or is under common
control with, or is an associated person (within the meaning of Article I, Section 1(ee) of
the By-laws of the FINRA) of, any member firm of the FINRA.
(ww) No approval of the stockholders of the Company under the rules and regulations of
Nasdaq (including Rule 4350 of the Nasdaq Global Marketplace Rules) is required for the
Company to issue and deliver the Common Stock and the Warrants to the Purchasers.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to
counsel for the Placement Agent shall be deemed to be a representation and warranty by the Company
to the Placement Agent as to the matters set forth therein.
Section 3. Certain Agreements of the Placement Agent. The Placement Agent hereby represents
and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the Commission
by the Company and not incorporated by reference into the Registration Statement and any press
release issued by the Company) other than (i) a free writing prospectus that contains no
“issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not
included (including through incorporation by reference) in the Preliminary Prospectus,
(ii) any Issuer Free Writing Prospectus identified on Schedule B, or (iii) any free
writing prospectus prepared by such underwriter and approved by the Company in advance in
writing (each such free writing prospectus referred to in clauses (i) or (iii), a
“Placement Agent Free Writing Prospectus”).
15
(b) It has not and will not distribute any Placement Agent Free Writing Prospectus
referred to in Section 3(a)(i) in a manner reasonably designed to lead to its broad
unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Common Stock and Warrants unless
such terms have previously been included in a free writing prospectus filed with the
Commission.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of
each free writing prospectus used by it, in accordance with Rule 433 under the Securities Act.
Section 4. Covenants of the Company. The Company covenants and agrees with the Placement
Agent and, as applicable, with the Purchasers, as follows:
(a) Placement Agent’s Review of Proposed Amendments and Supplements. During the period
beginning on the Initial Sale Time and ending on the later of the Closing Date or such date,
as in the opinion of counsel for the Placement Agent, the Prospectus is no longer required by
law to be delivered in connection with sales by the Placement Agent or a dealer, including in
circumstances where such requirement may be satisfied pursuant to Rule 172 (the
“Prospectus Delivery Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the Exchange Act), the Company
shall furnish to the Placement Agent for review a copy of each such proposed amendment or
supplement, as to which the Placement Agent will respond in a timely manner sufficient for the
Company to meet any applicable filing deadlines, and the Company shall not file or use any
such proposed amendment or supplement to which the Placement Agent reasonably objects.
(b) Securities Act Compliance. After the date of this Agreement, during the Prospectus
Delivery Period, the Company shall promptly advise the Placement Agent in writing (i) of the
receipt of any comments of, or requests for additional or supplemental information from, the
Commission, (ii) of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any Preliminary Prospectus or the
Prospectus, (iii) of the time and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order or notice
preventing or suspending the use of the Registration Statement or the Prospectus, or of any
proceedings to remove, suspend or terminate from listing the Common Stock from the Nasdaq
Global Market, or of the threatening or initiation of any proceedings for any of such
purposes. The Company shall use its best efforts to prevent the issuance of any such stop
order or prevention or suspension of such use. If the Commission shall enter any such stop
order or notice of prevention or suspension at any time, the Company will use its best efforts
to obtain the lifting of such order at the earliest possible moment, or will file a new
registration statement and will use its best efforts to have such new registration statement
declared effective as soon as practicable.
16
Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b)
and 430B, as applicable, under the Securities Act, including with respect to the timely filing
of documents thereunder, and will use its reasonable efforts to confirm that any filings made
by the Company under such Rule 424(b) were received in a timely manner by the Commission. The
Company has prepared and filed a Rule 462(b) Registration Statement in a form approved by the
Placement Agent with the Commission on the date hereof.
(c) Exchange Act Compliance. During the Prospectus Delivery Period, the Company will
file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(d) Amendments and Supplements to the Registration Statement, Prospectus and Other
Securities Act Matters. If, during the Prospectus Delivery Period, any event or development
shall occur or condition exist as a result of which the Disclosure Package or the Prospectus
as then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein in the light of
the circumstances then prevailing or under which they were made, as the case may be, not
misleading, or if it shall be necessary to amend or supplement the Disclosure Package or
Prospectus, or to file under the Exchange Act any document incorporated by reference in the
Disclosure Package or Prospectus, in order to make the statements therein, in the light of the
circumstances then prevailing or under which they were made, as the case may be, not
misleading, or if in the opinion of the Placement Agent it is otherwise necessary to amend or
supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file
under the Exchange Act any document incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the Prospectus, in order to
comply with law, including in connection with the delivery of the Prospectus, the Company
agrees to (i) notify the Placement Agent of any such event or condition and (ii) promptly
prepare (subject to Section 3(a) hereof), file with the Commission (and use its best efforts
to have any amendment to the Registration Statement or any new registration statement to be
declared effective) and furnish at its own expense to the Placement Agent and to dealers,
amendments or supplements to the Registration Statement, the Disclosure Package or the
Prospectus, or any new registration statement, necessary in order to make the statements in
the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the
circumstances then prevailing or under which they were made, as the case may be, not
misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as
amended or supplemented, will comply with law.
(e) Permitted Free Writing Prospectuses. The Company represents that it has not made,
and agrees that, unless it obtains the prior written consent of the Placement Agent, it will
not make any offer relating to the Common Stock and Warrants that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) required to be filed by the Company with the
Commission or retained by the Company under Rule 433 of the Securities Act; provided that the
prior written consent of the Placement Agent hereto shall
17
be deemed to have been given in respect of the Free Writing Prospectuses included in
Schedule B hereto. Any such free writing prospectus consented to by the Placement
Agent is hereinafter referred to as a “Permitted Free Writing Prospectus”. The
Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(f) Copies of any Amendments and Supplements to the Prospectus. The Company agrees to
furnish the Placement Agent, without charge, during the Prospectus Delivery Period, as many
copies of the Prospectus and any amendments and supplements thereto (including any documents
incorporated or deemed incorporated by reference therein) and the Disclosure Package as the
Placement Agent may request.
(g) Copies of the Registration Statement and the Prospectus. The Company will furnish to
the Placement Agent and counsel for the Placement Agent photocopies of signed copies of the
Registration Statement (excluding exhibits thereto) and, so long as delivery of a prospectus
by a Placement Agent or dealer may be required by the Act, as many copies of the Prospectus
and any supplement thereto and the Disclosure Package as the Placement Agent may reasonably
request.
(h) Blue Sky Compliance. The Company shall cooperate with the Placement Agent and
counsel for the Placement Agent to qualify or register the Common Stock and Warrants for sale
under (or obtain exemptions from the application of) the state securities or blue sky laws of
those jurisdictions designated by the Placement Agent, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Common Stock and Warrants. The Company shall not be required to
qualify as a foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation, other than those arising out of the
offering or sale of the Common Stock and Warrants in any jurisdiction where it is not now so
subject. The Company will advise the Placement Agent promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common Stock and
Warrants for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the
Common Stock and Warrants sold by it in the manner described under the caption “Use of
Proceeds” in each of the Disclosure Package and the Prospectus.
(j) Agreement Not to Offer or Sell Additional Common Stock and Warrants. During the
period commencing on the date hereof and ending on the 90th day following the date of the
Prospectus, the Company will not, without the prior written consent of the
18
Placement Agent (which consent may be withheld at the sole discretion of the Placement
Agent), directly or indirectly (including, without limitation. the Company’s equity line of
credit arrangement with Azimuth Opportunity, Ltd.), sell, offer, contract or grant any option
to sell, pledge, transfer or establish an open “put equivalent position” or liquidate or
decrease a “call equivalent position” within the meaning of Rule 16a-1(h) under the Exchange
Act, or otherwise dispose of or transfer (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition of), or announce the offering
of, or file any registration statement under the Securities Act in respect of, any shares of
Common Stock, options or warrants to acquire shares of the Common Stock or securities
exchangeable or exercisable for or convertible into shares of Common Stock (other than as
contemplated by this Agreement with respect to the Common Stock and Warrants); provided,
however, that the Company may (i) issue shares of its Common Stock or options to purchase its
Common Stock, or Common Stock upon exercise of options, pursuant to any stock option, stock
bonus or other stock plan or arrangement, but only if the holders of such shares or options
who are executive officers and directors of the Company agree in writing not to sell, offer,
dispose of or otherwise transfer any such shares or options during such 90-day period without
the prior written consent of the Placement Agent (which consent may be withheld at the sole
discretion of the Placement Agent) and (ii) in connection with a bona fide commercial
transaction with a third party, but only if such third party agrees in writing to be bound by
the restrictions set forth in this Section 4(m). Notwithstanding the foregoing, if (x) during
the last 17 days of the 90-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs, or (y) prior to the
expiration of the 90-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the 90-day period, the
restrictions imposed in this clause shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence of the material
news or material event. The Company will provide the Placement Agent and any co-managers and
each individual subject to the restricted period pursuant to the lockup letters described in
Section 6(j) with prior notice of any such announcement that gives rise to an extension of the
restricted period.
(k) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will comply in all material respects
with all applicable securities and other laws, rules and regulations, including, without
limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and use its best efforts to cause the Company’s directors
and officers, in their capacities as such, to comply in all material respects with such laws,
rules and regulations, including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(l) Future Reports to Stockholders. To furnish to its stockholders as soon as
practicable after the end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders’ equity and cash flows of the Company and its consolidated
subsidiary certified by independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement), to make available to its
stockholders consolidated summary financial information of the Company and the Subsidiary for
such quarter in reasonable detail.
19
The Placement Agent may, in its sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the time for their performance.
Section 5. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Common Stock and Warrants (including all printing and engraving
costs), (ii) all fees and expenses of the registrar and transfer agent of the Common Stock, (iii)
all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Common Stock and Warrants to the Purchaser(s), (iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors, (v) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and distribution of the
Registration Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), and the Prospectus, and all amendments and supplements thereto, and this
Agreement, (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the
Placement Agent in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Common Stock and Warrants for offer and
sale under the state securities or blue sky laws or the provincial securities laws of Canada, (vii)
the filing fees incident to, and the reasonable fees and expenses of counsel for the Placement
Agent in connection with, the FINRA’s review and approval of the Placement Agent’ participation in
the offering and distribution of the Common Stock and Warrants, (viii) the fees and expenses
associated with listing of the Common Stock on the Nasdaq Global Market, if any, (ix) the
reasonable and documented expenses of the Placement Agent, and (x) all other fees, costs and
expenses referred to in Item 14 of Part II of the Registration Statement. The Placement Agent shall
pay the fees and disbursements of their counsel.
Section 6. Conditions of the Obligations of the Placement Agent. The obligations of the
Placement Agent hereunder shall be subject to the accuracy of the representations and warranties on
the part of the Company set forth in Section 2 hereof as of the date hereof and as of the Closing
Date as though then made and, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Accountants’ Comfort Letter. On the date hereof, the Placement Agent shall have
received from Ernst & Young LLP, independent registered public accountants for the Company, a
letter dated the date hereof in form and substance acceptable to, and addressed to the
Placement Agent.
(b) Compliance with Registration Requirements; No Stop Order; No Objection from FINRA.
For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the manner
20
and within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post-effective amendment to the Registration Statement containing
the information required by such Rule 430B, and such post-effective amendment shall have
become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the Commission; and
(iii) FINRA shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. Since the date of the latest
audited financial statements included in the Disclosure Package or incorporated by reference
in the Disclosure Package as of the date hereof:
(i) in the judgment of the Placement Agent there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (a) of this Section 6 which is, in the sole judgment of the
Placement Agent, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Common Stock and Warrants as contemplated by the
Registration Statement and the Prospectus;
(iii) the Company shall not have sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in the Disclosure Package, and
(iv) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or the Subsidiary by any “nationally recognized statistical rating
organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
(d) Opinion of Counsel for the Company. On the Closing Date, the Placement Agent shall
have received the favorable opinion of ▇▇▇▇▇ Day, counsel for the Company, dated as of such
Closing Date, in form and substance satisfactory to the Placement Agent.
(e) Opinion of IP Counsel for the Company. On the Closing Date, the Placement Agent
shall have received the favorable opinion of ▇▇▇▇▇▇▇ Coie LLP, special intellectual property
counsel for the Company, dated as of such Closing Date, in form and substance satisfactory to
the Placement Agent.
21
(f) Opinion of FDA Counsel for the Company. On the Closing Date, the Placement Agent
shall have received the favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special FDA
counsel for the Company, dated as of such Closing Date, in form and substance satisfactory to
the Placement Agent.
(g) Opinion of Counsel for the Placement Agent. On the Closing Date, the Placement Agent
shall have received the favorable opinion of Proskauer Rose LLP, counsel for the Placement
Agent, dated as of such Closing Date, in form and substance satisfactory to, and addressed to,
the Placement Agent, with respect to the issuance and sale of the Common Stock and Warrants,
the Registration Statement, the Prospectus (together with any supplement thereto), the
Disclosure Package and other related matters as the Placement Agent may reasonably require and
are usual and customary, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(h) Officers’ Certificate. On the Closing Date, the Placement Agent shall have received
a written certificate executed by the Chairman of the Board, Chief Executive Officer or
President of the Company and the Principal Financial Officer or Principal Accounting Officer
of the Company, dated as of such Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus and any
amendment or supplement thereto, any Issuer Free Writing Prospectus and any amendment or
supplement thereto and this Agreement, to the effect set forth in subsections (b) and (c)(iii)
of this Section 6, and further to the effect that:
(i) the representations, warranties and covenants of the Company set forth in Section 2
of this Agreement are true and correct on and as of the Closing Date with the same force and
effect as though expressly made on and as of such Closing Date; and
(ii) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
(iii) there has not been, subsequent to the date of the most recent unaudited financial
statements included or incorporated by reference in the Disclosure Package, any
Material Adverse Change, except as set forth in the Prospectus.
(i) Bring-down Comfort Letter. On the Closing Date, the Placement Agent shall have
received from Ernst & Young LLP, independent registered public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the Placement Agent, to the
effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (a) of this Section 6, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to the Closing
Date.
(j) Listing of Common Stock and Warrants. The Common Stock shall have been accepted for
listing on the Nasdaq Global Market.
22
(k) Subscription Agreements. On or before the Closing Date, the Company shall have
entered into the Subscription Agreement(s) with each of the Purchaser(s) and such agreements
shall be in full force and effect.
(l) Additional Documents. On or before the Closing Date, the Placement Agent and counsel
for the Placement Agent shall have received such information, documents and opinions as they
may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Common Stock and Warrants as contemplated herein, or in order to evidence the accuracy of
any of the representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 6 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Placement Agent by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 5, Section 7, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
Section 7. Reimbursement of Placement Agent’s Expenses. If this Agreement is terminated by
the Placement Agent pursuant to Section 6 or Section 10, or if the sale to the Purchaser(s) of the
Common Stock and Warrants on the Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Placement Agent, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Placement Agent and the in
connection with the proposed purchase and the offering and sale of the Common Stock and Warrants,
including but not limited to fees and disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges.
Section 8. Indemnification.
(a) Indemnification of the Placement Agent. The Company agrees to indemnify and hold
harmless the Placement Agent, its directors, officers, employees and agents (including,
without limitation, Lazard Frères & Co. LLC (which will provide services to LCM) and its
directors, officers, employees and agents, and each person, if any, who controls Lazard Frères
& Co. LLC within the meaning of the Securities Act and the Exchange Act), and each person, if
any, who controls the Placement Agent within the meaning of the Securities Act and the
Exchange Act (collectively, including the Placement Agent, the “Placement Agent
Indemnified Parties”) against any loss, claim, damage, liability or expense, as incurred,
to which such Placement Agent Indemnified Party person may become subject, insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of
a material fact contained in the Company’s Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430B under the
Securities Act, or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading; or (ii) upon any
untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission
23
therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and to reimburse each
Placement Agent Indemnified Party for any and all expenses (including the fees and
disbursements of counsel chosen by the Placement Agent) as such expenses are reasonably
incurred by such Placement Agent Indemnified Party in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any liability other than the indemnification obligation provided in paragraph (a)
above. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party’s election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (other than local counsel),
reasonably approved by the indemnifying party (or by the Placement Agent in the case of
Section 9), representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
24
(c) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 8(b) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that
are the subject matter of such action, suit or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for any reason
unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Placement Agent, on the other hand, from the Offering or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Placement Agent, on the other hand, in
connection with the statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the Company, on the one
hand, and the Placement Agent, on the other hand, in connection with the Offering shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Common
Stock and Warrants pursuant to this Agreement (before deducting expenses) received by the Company,
and the total placement agent fees received by the Placement Agent, in each case as set forth on
the front cover page of the Prospectus bear to the aggregate offering price of the Common Stock and
Warrants as set forth on such cover. The relative fault of the Company, on the one hand, and the
Placement Agent, on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact or any such inaccurate or alleged inaccurate representation or
warranty relates to information supplied by the Company, on the one hand, or the Placement Agent,
on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
25
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(b), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 8(b) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(b) for purposes of
indemnification.
The Company and the Placement Agent agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Placement Agent were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, the Placement Agent shall not be required to
contribute any amount in excess of the placement agent fees received by it in connection with the
Offering. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each director, officer, employee and
agents of the Placement Agent and each person, if any, who controls the Placement Agent within the
meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as
the Placement Agent, and each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company with the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 10. Termination of this Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Placement Agent by notice given to the Company if at any time (i) trading or
quotation in any of the Company’s securities shall have been suspended or limited by the Commission
or by the Nasdaq Global Market, or trading in securities generally on the New York Stock Exchange
or the Nasdaq Global Market shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the Commission or the
FINRA; (ii) a general banking moratorium shall have been declared by federal or New York
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States has occurred; or (iii) there shall have occurred any outbreak or
escalation of national or international hostilities or any crisis or calamity, or any change in the
United States or international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international political, financial
or economic conditions, as in the judgment of the Placement Agent is material and adverse and makes
it impracticable or inadvisable to market the Common Stock and Warrants in the manner and on the
terms described in the Prospectus or to enforce contracts for the sale of securities. Any
termination pursuant to this Section 10 shall be without liability on the part of (a) the Company
to the Placement Agent, except that the Company shall be obligated to reimburse the expenses of the
Placement Agent pursuant to Sections 5 and 7 hereof, or (b) the Placement Agent to the Company.
26
Section 11. No Advisory or Fiduciary Responsibility. The Company acknowledges and agrees
that: (i) the purchase and sale of the Securities pursuant to this Agreement and the Subscription
Agreements, including the determination of the public offering price of the Securities and any
related discounts and commissions, is an arm’s-length commercial transaction between the Company,
on the one hand, and the Placement Agent, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated
hereby and the process leading to such transaction the Placement Agent is and has been acting
solely as a Placement Agent and is not a financial advisor, or a fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) neither the Placement
Agent nor Lazard Frères & Co. LLC have assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Placement Agent or Lazard Frères & Co.
LLC has advised or is currently advising the Company on other matters) and the Placement Agent has
no obligation to the Company with respect to the Offering except the obligations expressly set
forth in this Agreement; (iv) the Placement Agent and Lazard Frères & Co. LLC and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the Placement Agent has no obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (v) neither the
Placement Agent nor Lazard Frères & Co. LLC has provided any legal, accounting, regulatory or tax
advice with respect to the Offering and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Placement Agent and Lazard Frères & Co. LLC, or any of them, with respect
to the subject matter hereof. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Placement Agent and Lazard
Frères & Co. LLC with respect to any breach or alleged breach of agency or fiduciary duty.
Section 12. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, of its officers and of
the Placement Agent set forth in or made pursuant to this Agreement (i) will remain operative and
in full force and effect, regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of any Placement Agent, the officers or employees of the Placement
Agent, or the Company, the officers or employees of the Company, or any person controlling the
Company, as the case may be or (B) acceptance of the Common Stock and Warrants and payment for them
pursuant to the Subscription Agreements and (ii) will survive delivery of and payment for the
Common Stock and Warrants sold pursuant to the Subscription Agreements and any termination of this
Agreement.
Section 13. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
27
If to the Placement Agent:
Lazard Capital Markets LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to the Company:
Dendreon Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of (i) the Company, its directors, any person who controls the
Company within the meaning of the Securities Act and the Exchange Act and any officer of the
Company who signs the Registration Statement, (ii) the Placement Agent, the officers, directors,
employees and agents (including, without limitations, Lazard Frères & Co. LLC (which will provide
services to LCM), its officers, directors, employees and agents and each person, if any, who
controls Lazard Frères & Co. LLC within the meaning of the Securities Act and the Exchange Act) of
the Placement Agent, and each person, if any, who controls the Placement Agent within the meaning
of the Securities Act and the Exchange Act, and (iii) the respective successors and assigns of any
of the above, all as and to the extent provided in this Agreement, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term “successors and assigns”
shall not include a purchaser of any of the Common Stock and Warrants from the Placement Agent
merely because of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
28
Section 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE.
Section 17. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus (and any amendments and supplements thereto) and any Issuer Free Writing
Prospectus as required by the Securities Act and the Exchange Act.
29
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, | |||||||
| DENDREON CORPORATION | |||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | ||||||
| Name: | ▇▇▇▇ ▇▇▇▇ | ||||||
| Title: | Sr. Vice President, Corp.
Development, General Counsel and Secretary |
||||||
The foregoing Placement Agent Agreement is hereby confirmed and accepted by the Placement
Agent as of the date first above written.
| LAZARD CAPITAL MARKETS LLC | |||||
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | ||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | ||||
| Title: | Managing Director Lazard Capital Markets, LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||
1
Schedule A
8 million common stock shares priced at $5.92 per share
Each common stock share accompanied by a Warrant exercisable for one share of common stock
Warrant exercise price: $20.00
Warrant Term: Exercisable after October 8, 2008 until April 8, 2015
Each common stock share accompanied by a Warrant exercisable for one share of common stock
Warrant exercise price: $20.00
Warrant Term: Exercisable after October 8, 2008 until April 8, 2015
Schedule B
None
2