As filed with the Securities and Exchange Commission on March 27, 2002
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DENDREON CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 22-3203193
(State of Incorporation) (I.R.S. Employer Identification No.)
3005 First Avenue
Seattle, Washington 98121
(206) 256-4545
(Address of principal executive offices)
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2002 Broad Based Equity Incentive Plan
(Full title of the plans)
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Christopher S. Henney, Ph.D., D.Sc. Copies to:
Chief Executive Officer Julie M. Robinson, Esq.
Dendreon Corporation Cooley Godward LLP
3005 First Avenue 4401 Eastgate Mall
Seattle, Washington 98121 San Diego, CA 92121-1909
(206) 256-4545 (858) 550-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered Registered (1) Price per Share Offering Price Fee
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Common Stock, $.001 par value, subject to outstanding
options with fixed exercise prices under the:
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2002 Broad Based Equity Incentive Plan 1,500,000 $4.10 (2) $ 6,150,000 $ 565.80
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
such employee benefit plan as the result of any future stock split, stock
dividend or similar adjustment of the Registrant's outstanding Common
Stock.
(2) Estimated pursuant to Rule 457 of the Securities Act of 1933, as amended,
solely for the purpose of calculating the amount of the registration fee.
The price per share is estimated to be $4.10 based on the average of the
high ($4.30) and low ($3.90) sales prices for the Common Stock in the
over-the-counter market on March 20, 2002, as reported on the Nasdaq
National Market.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 2002 Broad Based Equity Incentive Plan pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended, (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Dendreon Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission are
incorporated by reference into this Registration Statement:
. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 filed with the Securities and Exchange Commission
(the "Commission") on March 26, 2002; and
. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A, filed May 22, 2000, under Section
12(g) of the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward LLP, San Diego, California. As of the
date of this Prospectus, certain members and associates of Cooley Godward own an
aggregate of 27,458 shares of Common Stock through an investment partnership.
Item 6. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that a director of a corporation will not be personally liable for monetary
damages for breach of that individual's fiduciary duties as a director except
for liability (a) for any breach of the director's duty of loyalty to the
company or to its stockholders, (b) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (c) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the Delaware General Corporation Law or (d) for any
transaction from which a director derives an improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its directors
and executive officers and may indemnify its officers, employees and other
agents to the fullest extent not prohibited by law. The Company believes that
indemnification under its Bylaws covers at least negligence on the part of an
indemnified party. The Company's Bylaws also permit it to advance expenses
incurred by an indemnified party in connection with the defense of any action or
proceeding arising out of his or her status or service as a director, officer,
employee or other agent of the
1.
Company upon an undertaking by him or her to repay any advances if it is
ultimately determined that he or she is not entitled to indemnification.
The Company enters into separate indemnification agreements with its
directors and officers. These agreements require the Company to, among other
things, indemnify the director or officer against expenses, including attorney's
fees, judgments, fines and settlements paid by the individual in connection
with any action, suit or proceeding arising out of the individual's status or
service as a director or officer of the Company, other than liabilities arising
from willful misconduct or conduct that is knowingly fraudulent or deliberately
dishonest, and to advance expenses incurred by the individual in connection with
any proceeding against him or her individually with respect to which he or she
individually may be entitled to indemnification by the Company.
The Company believes that its certificate of incorporation and bylaw
provisions and indemnification agreements are necessary to attract and retain
qualified persons as directors and executive officers. The Company also
maintains directors' and officers' liability insurance. At present, the Company
is not aware of any pending litigation or proceeding involving any director,
officer, employee or agent of the Company where indemnification will be required
or permitted. Furthermore, the Company is not aware of any threatened litigation
or proceeding that might result in a claim for indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, executive officers or persons controlling the
Company, the Company has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation. (1)
4.2 Bylaws. (2)
4.3 Specimen Common Stock Certificate. (2)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney contained on the signature page.
99.1 2002 Broad Based Equity Incentive Plan.
______________________
(1) Filed as an exhibit to Registration Statement on Form S-1, File No.
333-47706.
(2) Filed as an exhibit to Registration Statement on Form S-1, File No.
333-31920.
2.
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) above do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act of 1934) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
3.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, King County, State of Washington, on March
26, 2002.
DENDREON CORPORATION
By: /s/ Christopher S. Henney
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Christopher S. Henney, Ph.D., D.Sc
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints T. Dennis George and Martin A. Simonetti
and each of them or any one, as his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place, and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments, exhibits thereto and other
documents in connection therewith) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Christopher S. Henney Chief Executive Officer March 26, 2002
- ------------------------------------------ and Chairman of the Board of Directors
Christopher S. Henney, Ph.D., D.Sc. (Principal Executive Officer)
/s/ Martin A. Simonetti Chief Financial Officer March 26, 2002
- ------------------------------------------ (Principal Financial and
Martin A. Simonetti Accounting Officer)
/s/ David L. Urdal President and Director March 26, 2002
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David L. Urdal, Ph.D.
/s/ William Crouse Director March 26, 2002
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William Crouse
/s/ Gerardo Canet Director March 26, 2002
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Gerardo Canet
/s/ Bogdan Dziurzynski Director March 26, 2002
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Bogdan Dziurzynski
/s/ Timothy Harris Director March 26, 2002
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Timothy Harris, Ph.D.
/s/ Ruth Kunath Director March 26, 2002
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Ruth Kunath
/s/ Ralph Shaw Director March 26, 2002
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Ralph Shaw
/s/ Douglas Watson Director March 26, 2002
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Douglas Watson
EXHIBIT INDEX
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation. (1)
4.2 Bylaws. (2)
4.3 Specimen Common Stock Certificate. (2)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney contained on the signature page.
99.1 2002 Broad Based Equity Incentive Plan.
__________________
(1) Filed as an exhibit to Registration Statement on Form S-1, File No.
333-47706.
(2) Filed as an exhibit to Registration Statement on Form S-1, File No.
333-31920.