Current Report

 
 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 10, 2008
DENDREON CORPORATION
(Exact name of registrant as specified in its charter)
         
Delaware
(State or other jurisdiction of
incorporation) 		  000-30681
(Commission File Number) 		  22-3203193
(I.R.S. Employer Identification
Number)
     
3005 First Avenue
Seattle, Washington
98121
(Address of principal executive offices) (zip code)
(206) 256-4545
(Registrant’s telephone number, including area code)
None
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 

 

Item 8.01.   Other Events.
     On October 10, 2008, we sold $20,942,408 of our common stock to Azimuth Opportunity Ltd. (“Azimuth”) in the first draw down under our previously disclosed up to $130 million equity line of credit arrangement with Azimuth.
     We sold Azimuth an aggregate of 3,610,760 shares of our common stock at a threshold price of $5.80 per share, less a discount of 4.5%, for a purchase price to Azimuth of $5.539 per share. We received net proceeds from the sale of these shares of approximately $19.8 million after deducting the 1.0% placement agent fee of $209,424 paid to Reedland Capital Partners, an institutional division of Financial West Group, Member FINRA, in connection with this offering. The offering price of the shares was established with reference to the volume weighted average prices of our common stock on the Nasdaq Global Market for the period beginning October 6, 2008 and ending October 8, 2008. In connection with this sale, we are filing, as Exhibit 5.1 hereto, an opinion of our outside counsel, Jones Day.
          We intend to use the net proceeds from our sale of common stock to Azimuth to fund our development and commercialization activities for Provenge, to fund our other research and preclinical development activities, to satisfy third party obligations and/or for general corporate purposes, including working capital.
          The foregoing description is qualified in its entirety by reference to the Common Stock Purchase Agreement, dated October 11, 2007, between us and Azimuth, which is incorporated by reference into this report, and to Amendment No. 1 thereto, dated as of October 8, 2008, a copy of which is filed with this report.
Item 9.01.   Financial Statements and Exhibits.
(d) Exhibits
         
Exhibit No.   Description
       
 
  5.1    
Opinion of Jones Day.
       
 
  10.1    
Common Stock Purchase Agreement, dated October 11, 2007, by and between Dendreon Corporation and Azimuth Opportunity Ltd. (incorporated by reference to Exhibit 10.1 of Dendreon’s Current Report on Form 8-K filed on October 12, 2007).
       
 
  10.2    
Amendment No. 1, dated as of October 8, 2008, to Common Stock Purchase Agreement, dated October 11, 2007, by and between Dendreon Corporation and Azimuth Opportunity Ltd.

 

 

SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  DENDREON CORPORATION
  		 
  By:   /s/ Richard F. Hamm, Jr.    
    Richard F. Hamm, Jr.   
Date: October 10, 2008    Senior Vice President, Corporate Development, General Counsel and Secretary   
 

 

 

EXHIBIT INDEX
         
Exhibit No.   Description
       
 
  5.1    
Opinion of Jones Day.
       
 
  10.1    
Common Stock Purchase Agreement, dated October 11, 2007, by and between Dendreon Corporation and Azimuth Opportunity Ltd. (incorporated by reference to Exhibit 10.1 of Dendreon’s Current Report on Form 8-K filed on October 12, 2007).
       
 
  10.2    
Amendment No. 1, dated as of October 8, 2008, to Common Stock Purchase Agreement, dated October 11, 2007, by and between Dendreon Corporation and Azimuth Opportunity Ltd.

 

Exhibit 5.1
October 10, 2008
Dendreon Corporation
3005 First Avenue
Seattle, Washington 98121
Ladies and Gentlemen:
     We have acted as counsel for Dendreon Corporation, a Delaware corporation (the “ Company ”), in connection with the issuance and sale by the Company of 3,610,760 shares (the “ Shares ”) of common stock, par value $0.001 per share, of the Company (and the accompanying preferred stock purchase rights (the “ Rights ”) and the Shares and the Rights together, the “ Securities ”) pursuant to that certain Common Stock Purchase Agreement dated as of October 11, 2007 by and between Azimuth Opportunity Ltd. (the “ Purchaser ”) and the Company, as amended by Amendment No. 1 thereto, dated as of October 8, 2008 (as amended, the “ Purchase Agreement ”).
     In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of these opinions. Based on the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinions that:
  1.   The Shares have been authorized by all necessary corporate action of the Company and, when issued and delivered pursuant to the terms of the Purchase Agreement against payment of the consideration therefor as provided therein, will be validly issued, fully paid and nonassessable.
  2.   When issued in accordance with the terms and conditions of the Rights Agreement, dated September 18, 2002, between the Company and Mellon Investor Services LLC, as rights agent (as it may be amended from time to time, the “ Rights Agreement ”), the Rights will be validly issued.
     In rendering the foregoing opinions, we have assumed that the resolutions authorizing the Company to issue, offer and sell the Securities will be in full force and effect at all times at which any Securities are offered or sold by the Company.
     The opinion set forth in paragraph 2 above is limited to the corporate authorization and valid issuance of the Rights under the corporation laws of the State of Delaware. We do not express any opinion herein with respect to any other aspect of the Rights, the effect of equitable principles or fiduciary considerations relating to the adoption of the Rights Agreement or the issuance of the Rights or the enforceability or any particular provisions of the Rights Agreement.

 

 

Dendreon Corporation
October 10, 2008
Page 2
In rendering the opinion set forth in paragraph 2 above, we have assumed that the Board of Directors of the Company has acted and will act in the good faith exercise of its business judgment with respect to the authorization of the issuance of the Rights and the execution of the Rights Agreement. Our examination of matters of law in connection with the opinions expressed herein has been limited to, and accordingly our opinions herein are limited to, the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting such law, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.
     We hereby consent to the filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof filed by the Company relating to the Registration Statement No. 333-151573 on Form S-3 (the “Registration Statement”), and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
 
 
Very truly yours,
 
/s/ Jones Day

 

Exhibit 10.2
AMENDMENT NO. 1 TO
COMMON STOCK PURCHASE AGREEMENT
     This Amendment No. 1 (the “ First Amendment ”) to that certain Common Stock Purchase Agreement, dated October 11, 2007 (the “ Agreement ”), by and between Dendreon Corporation, a Delaware corporation (the “ Company ”), and Azimuth Opportunity Ltd., an international business company incorporated under the laws of the British Virgin Islands (the “ Investor ”), is entered into as of October 8, 2008 (the “ First Amendment Date ”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Agreement.
Recitals
      Whereas , Section 4.18 of the Agreement provides that the Registration Statement was declared effective by order of the Commission on May 25, 2007, the definition of “Base Prospectus” in the Agreement refers to the Company’s prospectus, dated October 11, 2007, and the definition of “Registration Statement” refers to the registration statement on Form S-3, Commission File Number 333-141388;
      Whereas , on June 11, 2008, the Company filed a new registration statement on Form S-3, Commission File Number 333-51573, to register the offer and sale of shares of Common Stock under the Agreement, which new registration statement was declared effective by order of the Commission on August 29, 2008;
      Whereas , the Company and the Investor desire to utilize the new registration statement on Form S-3, Commission File Number 333-51573, in connection with the offer and sale of shares of Common Stock under the Agreement, in lieu of the registration statement on Form S-3, Commission File Number 333-141388;
      Whereas , the Agreement remains in full force and effect;
      Whereas , Section 9.3 of the Agreement provides that the Agreement may be amended by a written instrument signed by the Company and the Investor; and
      Whereas , the Company and the Investor now desire to amend the Agreement as set forth herein.
Agreement
      Now, Therefore, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in the Agreement and this First Amendment, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
      1. Amendment of Section 4. 18(i) . Effective as of the First Amendment Date, Section 4.18(i) of the Agreement shall be amended and restated in its entirety to read as follows:
     “(i) The Company has prepared and filed with the Commission in accordance with the provisions of the Securities Act the Registration Statement, including a base prospectus relating to the Shares. The Registration Statement was declared effective by

 

 

order of the Commission on August 29, 2008. As of the date hereof, no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission or is continuing in effect under the Securities Act and no proceedings therefor are pending before or, to the Company’s knowledge, threatened by the Commission. No order preventing or suspending the use of the Prospectus or any Permitted Free Writing Prospectus has been issued by the Commission.”
      2. Amendment of “Base Prospectus” Definition. Effective as of the First Amendment Date, the definition of “Base Prospectus” in Section (c) of Annex A to the Agreement shall be amended and restated in its entirety to read as follows:
“(c) “ Base Prospectus ” shall mean the Company’s prospectus, dated August 12, 2008, a preliminary form of which is included in the Registration Statement, including the documents incorporated by reference therein.”
      3. Amendment of “Registration Statement” Definition. Effective as of the First Amendment Date, the definition of “Registration Statement” in Section (aaa) of Annex A to the Agreement shall be amended and restated in its entirety to read as follows:
“(aaa) “ Registration Statement ” shall mean the registration statement on Form S-3, Commission File Number 333-51573, filed by the Company with the Commission under the Securities Act for the registration of the Shares, as such Registration Statement may be amended and supplemented from time to time, including the documents incorporated by reference therein and the information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act.”
      4. Continuing Effect of Agreement. Except as expressly set forth in this First Amendment, all other provisions of the Agreement remain in full force and effect.
      5. Governing Law. This First Amendment shall be governed by and construed in accordance with the internal procedure and substantive laws of the State of New York, without giving effect to the choice of law provisions of such state.
      6. Counterparts. This First Amendment may be executed in counterparts, all of which taken together shall constitute one and the same original and binding instrument and shall become effective when all counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]

 

 

      In Witness Whereof, the parties hereto have caused this Amendment No. 1 to the Agreement to be executed and delivered as of the First Amendment Date.
         
 


Company: DENDREON CORPORATION
  		 
  By:   /s/ Richard F. Hamm, Jr.    
    Name:   Richard F. Hamm, Jr.   
    Title:   Senior Vice President, Corporate Development, General Counsel and Secretary   
 
  Investor: AZIMUTH OPPORTUNITY LTD.
  		 
  By:   /s/ Deirdre M. McCoy    
    Name:   Deirdre M. McCoy   
    Title:   Corporate Secretary