exv10w27



 






[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit 10.27




EXECUTION COPY



 



WARRANT PURCHASE AGREEMENT




between




DYNAVAX TECHNOLOGIES CORPORATION




and




SYMPHONY DYNAMO HOLDINGS, LLC




 






Dated as of April 18, 2006




 





 



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	 1	 
	 
	 	 	 	 
	ARTICLE II PURCHASE AND SALE OF WARRANT
	 	 	1	 
	 
	 	 	 	 
	Section 2.01 Authorization to Issue Warrant
	 	 	 1	 
	Section 2.02 Purchase and Sale of Warrant
	 	 	 2	 
	Section 2.03 Warrant Date
	 	 	 2	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS OF PURCHASE
	 	 	2	 
	 
	 	 	 	 
	Section 3.01 Conditions Precedent to Each Party’s Obligations
	 	 	 2	 
	Section 3.02 Conditions Precedent to Holdings’ Obligations
	 	 	 3	 
	Section 3.03 Conditions Precedent to Dynavax’s Obligations
	 	 	 4	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS
	 	 	5	 
	 
	 	 	 	 
	Section 4.01 Representations, Warranties and Covenants of Holdings
	 	 	 5	 
	Section 4.02 Representations, Warranties and Covenants of Dynavax
	 	 	 7	 
	 
	 	 	 	 
	ARTICLE V INDEMNITY
	 	 	9	 
	 
	 	 	 	 
	Section 5.01 Indemnification
	 	 	 9	 
	Section 5.02 Notice of Claims
	 	 	10	 
	Section 5.03 Defense of Proceedings
	 	 	10	 
	Section 5.04 Settlement
	 	 	11	 
	 
	 	 	 	 
	ARTICLE VI TRANSFER RESTRICTIONS
	 	 	12	 
	 
	 	 	 	 
	Section 6.01 Transfer Restrictions
	 	 	12	 
	Section 6.02 Legends
	 	 	12	 
	Section 6.03 Warrant Legend Removal
	 	 	13	 
	Section 6.04 Improper Transfer
	 	 	13	 
	Section 6.05 Limits on Daily Disposition
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VII MISCELLANEOUS
	 	 	14	 
	 
	 	 	 	 
	Section 7.01 Notice of Material Event
	 	 	14	 
	Section 7.02 Notices
	 	 	14	 
	Section 7.03 Governing Law; Consent to Jurisdiction and Service of Process
	 	 	15	 
	Section 7.04 Waiver of Jury Trial
	 	 	16	 
	Section 7.05 Entire Agreement
	 	 	16	 
	Section 7.06 Amendment and Waivers
	 	 	16	 
	Section 7.07 Counterparts
	 	 	16	 
	Section 7.08 Assignment and Successors
	 	 	16	 
	 
	 	 	 	 
	Annex A    Certain Definitions
	 	 	 	 
	 
	 	 	 	 
	Exhibit A    Form of opinion of Cooley Godward LLP
	 	 	 	 
	Exhibit B   Form of Warrant
	 	 	 	 
	Exhibit C   Warrant Conversion Example
	 	 	 	 





[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




 









 








WARRANT PURCHASE AGREEMENT




          This WARRANT PURCHASE AGREEMENT (this “Agreement”) is dated as of April 18, 2006, by and
between Dynavax Technologies Corporation, a Delaware corporation (“Dynavax”), and SYMPHONY DYNAMO
HOLDINGS LLC, a Delaware limited liability company (together with its permitted successors, assigns
and transferees, “Holdings”).




          WHEREAS, contemporaneously with the execution of this Agreement, Holdings, Dynavax, and
Symphony Dynamo, Inc., a Delaware corporation (“Symphony Dynamo”) are entering into a Purchase
Option Agreement (the “Purchase Option Agreement”) pursuant to which, among other things, Holdings
is granting to Dynavax an option to purchase all of the equity securities of Symphony Dynamo (the
“Symphony Dynamo Equity Securities”) owned, or hereafter acquired, by Holdings on the terms set
forth in the Purchase Option Agreement (the “Purchase Option”); and




          WHEREAS, in consideration for Holdings’ grant of the Purchase Option to Dynavax, Dynavax
desires to issue and sell to Holdings the Warrant described herein on the terms hereof;




          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
(the “Parties”) agree as follows:




ARTICLE I




DEFINITIONS




          Section 1.01 Definitions. Capitalized terms used but not defined herein are used as
defined in Annex A hereto.




ARTICLE II




PURCHASE AND SALE OF WARRANT




          Section 2.01 Authorization to Issue Warrant. Dynavax has authorized the issuance of a
warrant (the “Warrant”, and together with any replacement warrants subsequently issued by Dynavax,
the “Warrants”) representing the right to purchase 2,000,000 shares of Dynavax’s common stock
(“Dynavax Common Stock”), par value $0.001 per share, at an exercise price per share of $7.32 (an
amount equal to 125% of the average closing price per share of Dynavax Common Stock, as reported by
the NASDAQ National Market, or other national exchange that is the primary exchange on which
Dynavax Common Stock is listed, over a continuous period of sixty (60) trading days immediately
preceding the second trading day prior to the Closing Date (such shares, the “Warrant Shares”);
provided, however that, if (a) [ * ], or (b) any Warrant shall remain outstanding
following the termination or unexercised expiration of



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




 









 







the Purchase Option, then the exercise price
of all then outstanding and unexercised Warrants shall be reduced to an exercise price per share of
$5.86 (an amount equal to 100% of the average closing price per share of Dynavax Common Stock, as
reported by the NASDAQ National Market, or other national exchange that is the primary exchange on
which Dynavax Common Stock is listed, over a continuous period of sixty (60) trading days
immediately preceding the second trading day prior to the Warrant Date (as defined herein)). The
Warrant shall have a term of five (5) years and shall be evidenced by certificates issued pursuant
to this Agreement in the form set forth in Exhibit B hereto, with such appropriate
insertions, omissions, substitutions, and other variations as are required or permitted by this
Agreement.




          Section 2.02 Purchase and Sale of Warrant. Dynavax hereby agrees to issue to
Holdings, and Holdings hereby agrees to acquire from Dynavax, the Warrant on the Closing Date
(hereinafter, the “Warrant Date”), subject to the fulfillment of the conditions precedent described
in Article III below. The Warrant will be issued to Holdings as consideration for the
execution and delivery by Holdings of the Purchase Option Agreement.




          Section 2.03 Warrant Date. Subject to the terms and conditions of this Agreement, the
sale and purchase of the Warrant contemplated by this Agreement shall take place at a closing on
the Warrant Date (the “Warrant Closing”) to be held at the offices of Shearman & Sterling LLP, 599
Lexington Avenue, New York, New York 10022, at 11:00 A.M., Eastern Time, following the satisfaction
or waiver of all other conditions to the obligations of the Parties set forth in Sections
2.02 hereof, or at such other place or at such other time or such other date as Holdings and
Dynavax shall mutually agree upon in writing.




ARTICLE III




CONDITIONS OF PURCHASE




          Section 3.01 Conditions Precedent to Each Party’s Obligations. The respective obligations
of Dynavax and Holdings to effect the transactions contemplated hereby shall be subject to the
satisfaction of the conditions precedent contained in this Section 3.01 or the waiver
thereof in writing by Holdings and Dynavax prior to or on the Warrant Date.




          (a) Approvals. All Governmental Approvals imposed by any Governmental Authority in
connection with the transactions contemplated by this Agreement and the other
Operative Documents required to be in effect prior to or on the Warrant Date shall be in
effect, the failure of which to be in effect would, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on either of the Parties.




          (b) Litigation. No Governmental Authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any law or Governmental Order (whether temporary,
preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits the
consummation of the transactions contemplated hereby or in the other Operative Documents.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




2









 








          Section 3.02 Conditions Precedent to Holdings’ Obligations. The obligation of
Holdings to effect the transactions contemplated hereby shall be subject to the satisfaction of the
further conditions precedent contained in this Section 3.02, or the waiver thereof in
writing by Holdings, prior to or on the Warrant Date.




          (a) Authorization, Execution and Delivery of Documents. This Agreement and each of
the other Operative Documents (including all schedules, annexes and exhibits thereto) required to
be entered into on or prior to the Warrant Date shall have been duly authorized, executed and
delivered by each of the parties thereto (other than Holdings) and shall be in full force and
effect.




          (b) Issuance of the Warrant. All actions required by any applicable law, or necessary
in the reasonable opinion of Holdings, to issue the Warrant shall have been duly taken by Dynavax
(or provisions therefor shall have been made), including, without limitation, the making of all
registrations and filings required to be made prior to or on the Warrant Date, and all necessary
consents shall have been received.




          (c) Performance of Obligations by Dynavax; Representations and Warranties. Dynavax
shall have performed in all material respects and complied in all material respects with all
agreements and conditions contained in this Agreement and the other Operative Documents that are
required to be performed or complied with by it prior to or on the Warrant Date. Dynavax’s
representations and warranties set forth in Section 4.02 of this Agreement shall be true
and correct in all respects as of the Warrant Date with the same effect as though such
representations and warranties were made on and as of the Warrant Date (or if stated to have been
made as of an earlier date, as of such date).




          (d) Opinion of Counsel. Holdings shall have received an opinion letter from Cooley
Godward LLP, counsel for Dynavax, substantially in the form attached hereto as Exhibit A.




          (e) Warrant Date Certificate. At the Warrant Closing for the Warrant, Holdings shall
have received a certificate from Dynavax executed by its Chief Financial Officer or other duly
authorized executive officer, dated as of the Warrant Date, in form and substance reasonably
satisfactory to Holdings, certifying:





     (i) (A) that the Operative Documents to which Dynavax is a party have been duly
authorized, executed and delivered by Dynavax, and are in full force and effect, and (B)
that Dynavax has satisfied all conditions precedent contained in the Operative Documents to
which it is a party required to be satisfied by it on or prior to the Warrant Date; and




     (ii) as to (A) the accuracy and completeness of the contents of Dynavax’s charter
documents, (B) the resolutions of Dynavax’s board of directors, duly authorizing Dynavax’s
execution, delivery and performance of each Operative Document to which it is or is to be a
party and each other document required to be executed and delivered by it in accordance with
the provisions hereof or thereof, and (C) the incumbency and signature of Dynavax’s
representatives authorized to execute and deliver documents on


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




3









 









its behalf in connection with
the obligations contemplated hereby and by the other Operative Documents.



          (f) Further Documents, Certificates, Etc. Holdings shall have received such other
documents, certificates or opinions as Holdings may reasonably request in connection with the
consummation of the transactions contemplated by this Agreement.




          (g) No Events of Default. No breach, default, event of default or other similar event
by Dynavax, and no event which with the giving of notice, the passage of time, or both, would
constitute any of the foregoing, under any Operative Document or any other material contract or
agreement to which Dynavax is a party, shall have occurred and be continuing, and no condition
shall exist that constitutes, or with the giving of notice, the passage of time, or both, would
constitute such default, event of default or other similar event.




          (h) No Violation. The transactions contemplated hereby shall comply with all
applicable law in effect as of the Warrant Date, and no party (other than Holdings) to such
transactions shall be in violation of any such applicable law. Holdings shall not be subject to
any penalty or liability pursuant to any violation of applicable law in effect as of such Warrant
Date by virtue of the transactions contemplated hereby and by each of the other Operative
Documents.




          (i) Change in Law. There shall have been no change in any law, rule or regulation or
the interpretation thereof (including any law, rule or regulation relating to taxes) that prohibits
or prevents the consummation of this Agreement or any of the transactions contemplated hereby
(including the sale and purchase of the Warrant) or by the Operative Documents or that results in
any material increase in taxes payable by Holdings or Investors.




          (j) Other Conditions Precedent. Dynavax shall have satisfied and complied with all
applicable conditions precedent set forth in each other Operative Document to which Dynavax is a
party required to be satisfied and complied with prior to or on the Warrant Date.




          Section 3.03 Conditions Precedent to Dynavax’s Obligations. The obligation of Dynavax
to effect the transactions contemplated hereby shall be subject to the satisfaction of the further
conditions precedent contained in this Section 3.03, or the waiver thereof in writing by
Dynavax, prior to or on the Warrant Date.




          (a) Authorization, Execution and Delivery of Documents. This Agreement and each of
the other Operative Documents (including all schedules and exhibits thereto) required to be entered
into on or prior to the Warrant Date shall have been duly authorized, executed and delivered by
each of the parties thereto (other than Dynavax) and shall be in full force and effect.




          (b) Performance of Obligations by Holdings; Representations and Warranties.





     (i) As of the Warrant Date, Holdings shall have performed in all material respects and
complied in all material respects with all agreements and conditions contained in this
Agreement and the other Operative Documents required to be performed or complied with by it
prior to or at the Warrant Date. Each of Holdings’ representations and warranties set forth
in Section 4.01 of this Agreement shall be true and correct in all


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




4









 









respects as of
the Warrant Date with the same effect as though such representations and warranties were
made on and as of the Warrant Date (or if stated to have been made as of an earlier date, as
of such date).




     (ii) [ * ].




     (iii) No breach, default, event of default or other similar event by Holdings, and no
event which with the giving of notice, the passage of time, or both, would constitute any of
the foregoing, under any Operative Document or any other material contract or agreement to
which Holdings is a party, shall have occurred and be continuing, and no condition shall
exist that constitutes, or with the giving of notice, the passage of time, or both, would
constitute such default, event of default or other similar event.




     (iv) The transactions contemplated hereby shall comply in all material respects with
all applicable law in effect as of the Warrant Date, and no party (other than Dynavax) to
such transactions shall be in material violation of any such applicable law. Dynavax shall
not be subject to any penalty or liability pursuant to any violation of applicable law in
effect as of such Warrant Date by virtue of the transactions contemplated hereby and by each
of the other Operative Documents, the failure to comply with which would, either
individually or in the aggregate, reasonably be expected to have a material adverse effect
on the Programs.




     (v) Holdings shall have satisfied and complied with all applicable conditions precedent
set forth in each other Operative Document to which Holdings is a party required to be
satisfied and complied with prior to or on the Warrant Date.



ARTICLE IV




REPRESENTATIONS, WARRANTIES AND COVENANTS




          Section 4.01 Representations, Warranties and Covenants of Holdings.




          (a) Holdings hereby represents and warrants to Dynavax that:





     (i) Organization. Holdings is a limited liability company, duly formed,
validly existing and in good standing under the laws of the State of Delaware.




     (ii) Authority and Validity. Holdings has all requisite limited liability
company power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution, delivery
and performance by Holdings of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary action required
on the part of Holdings, and no other proceedings on the part of Holdings are necessary to
authorize this Agreement or for Holdings to perform its obligations


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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5









 






under this Agreement.
This Agreement constitutes the lawful, valid and legally binding obligation of Holdings,
enforceable in accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.




     (iii) No Violation or Conflict. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or
result in the breach of any provision of the Organizational Documents of Holdings, (B)
conflict with or violate any law or Governmental Order applicable to Holdings or any of its
assets, properties or businesses, or (C) conflict with, result in any breach of, constitute
a default (or event that with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of Holdings, pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which Holdings is a party except, in the
case of clauses (B) and (C), to the extent that such conflicts, breaches,
defaults or other matters would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Holdings.




     (iv) Governmental Consents and Approvals. The execution, delivery and performance of this Agreement by Holdings do not, and
the consummation of the transactions contemplated hereby do not and will not, require any
Governmental Approval which has not already been obtained, effected or provided, except with
respect to which the failure to so obtain, effect or provide would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect on Holdings.




     (v) Litigation. There are no actions by or against Holdings pending before any
Governmental Authority or, to the knowledge of Holdings, threatened to be brought by or
before any Governmental Authority, that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on Holdings. There are no pending or, to the
knowledge of Holdings, threatened actions to which Holdings is a party (or threatened to be
named as a party) to set aside, restrain, enjoin or prevent the execution, delivery or
performance of this Agreement or the Operative Documents or the consummation of the
transactions contemplated hereby or thereby by any party hereto or thereto. Holdings is not
subject to any Governmental Order (nor, to the knowledge of Holdings, is there any such
Governmental Order threatened to be imposed by any Governmental Authority) that would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
on Holdings.




     (vi) Accredited Investor.




    (A) Holdings is and will remain at all relevant times an “Accredited Investor”.


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




6









 









     (B) Holdings has relied completely on the advice of, or has consulted with or
has had the opportunity to consult with, its own personal tax, investment, legal or
other advisors and has not relied on Dynavax or any of its Affiliates for advice.
Holdings has reviewed the Investment Overview and is aware of the risks disclosed
therein. Holdings acknowledges that it has had a reasonable opportunity to conduct
its own due diligence with respect to the Products, the Programs, Symphony Dynamo,
Dynavax and the transactions contemplated by the Operative Documents.




     (C) Holdings has been advised and understands that the offer and sale of the
Warrant and the Warrant Shares have not been registered under the Securities Act.
Holdings is able to bear the economic risk of such investment for an indefinite
period and to afford a complete loss thereof.




     (D) Holdings is acquiring the Warrant and the Warrant Shares solely for
Holdings’ own account for investment purposes as a principal and not with a view to
the resale of all or any part thereof; provided, that Holdings may transfer
all or part of its interest in the Warrant as set forth in Section 6.01
hereof. Holdings agrees that the Warrant (and any interest therein) and the Warrant
Shares may not be resold (1) without registration thereof under the Securities Act
(unless an exemption from such registration is available), or (2) in violation
of any law. Holdings is not and will not be an underwriter within the meaning of
Section 2(11) of the Securities Act with respect to the Warrant or the Warrant
Shares.




     (E) No person or entity acting on behalf of, or under the authority of,
Holdings is or will be entitled to any broker’s, finder’s, or similar fees or
commission payable by Dynavax or any of its Affiliates.




     (F) Holdings acknowledges and agrees to treat the Warrant for federal, state
and local income tax purposes as option premium paid in return for the grant and
maintenance of the Purchase Option.



          Section 4.02 Representations, Warranties and Covenants of Dynavax.




          (a) Dynavax hereby represents and warrants to Holdings that:





     (i) Organization. Dynavax is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.




     (ii) Authority and Validity. Dynavax has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and performance by
Dynavax of this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary action required on the part of Dynavax,
and no other proceedings on the part of Dynavax are necessary to authorize this Agreement or
for Dynavax to perform its obligations under


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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this Agreement. This Agreement constitutes the
lawful, valid and legally binding obligation of Dynavax, enforceable in accordance with its
terms, except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally and general equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.




     (iii) No Violation or Conflict. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or
result in the breach of any provision of the Organizational Documents of Dynavax, (B)
conflict with or violate any law or Governmental Order applicable to Dynavax or any of its
assets, properties or businesses, or (C) conflict with, result in any breach of, constitute
a default (or event that with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of Dynavax, pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which Dynavax is a party except,
in the case of clauses (B) and (C), to the extent that such conflicts,
breaches, defaults or other matters would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on Dynavax.




     (iv) Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by Dynavax do not, and the consummation of the transactions
contemplated hereby do not and will not, require any Governmental Approval which has not
already been obtained, effected or provided, except with respect to which the failure to so
obtain, effect or provide would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Dynavax.




     (v) Litigation. There are no actions by or against Dynavax pending before any
Governmental Authority or, to the knowledge of Dynavax, threatened to be brought by or
before any Governmental Authority, that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on Dynavax. There are no pending or, to the
knowledge of Dynavax, threatened actions, to which Dynavax is a party (or is threatened to
be named as a party) to set aside, restrain, enjoin or prevent the execution, delivery or
performance of this Agreement or the Operative Documents or the consummation of the
transactions contemplated hereby or thereby by any party hereto or thereto. Dynavax is not
subject to any Governmental Order (nor, to the knowledge of Dynavax, is there any such
Governmental Order threatened to be imposed by any Governmental Authority) that would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
on Dynavax.




     (vi) Private Placement. Assuming the accuracy of Holdings’ representations and
warranties set forth in Section 4.01, (i) the purchase and sale of the Warrant is
exempt from the registration requirements of the Securities Act, and (ii) no other offering
of Dynavax Common Stock by Dynavax will be integrated with the offering of the


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Warrant Purchase Agreement




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Warrant or
the Warrant Shares. Neither Dynavax nor any Person acting on its behalf has or will offer
the Warrant or the Warrant Shares by any form of general solicitation or general advertising
and all filings required under Rule 503 of the Securities Act will be made in a timely
manner.



          (b) Dynavax covenants and agrees with Holdings that, so long as any Warrant is outstanding
(including as such Warrants may be reissued pursuant to transfer in accordance with Section
6.01 hereof), Dynavax shall take all action necessary to reserve and keep available out of its
authorized and unissued Dynavax Common Stock, solely for the purpose of effecting the exercise of
the Warrants, 100% of the number of shares of Dynavax Common Stock issuable upon exercise of the
Warrant. Upon exercise in accordance with the Warrant, the Dynavax Common Stock delivered thereby
will be validly issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof, with the holders being entitled to all rights accorded to a
holder of the Dynavax Common Stock.




          (c) Dynavax acknowledges and agrees to treat the Warrant for federal, state and local income
tax purposes as option premium paid in return for the grant of the Purchase Option.




ARTICLE V




INDEMNITY




          Section 5.01 Indemnification. To the greatest extent permitted by applicable law, Dynavax
shall indemnify and hold harmless Holdings, and Holdings shall indemnify and hold harmless Dynavax,
and each of their respective Affiliates, officers, directors, employees, agents, partners, members,
successors, assigns, representatives of, and each Person, if any (including any officers,
directors, employees, agents, partners, members of such Person) who controls, Holdings and Dynavax,
as applicable, within the meaning of the Securities Act or the Exchange Act, (each, an “Indemnified
Party”), from and against any and all actions, causes of action, suits, claims, losses, costs,
interest, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements
(hereinafter, a “Loss”), incurred by any Indemnified Party as a result of, or arising out of, or
relating to: (i) in the case of Dynavax being the Indemnifying Party, (A) any breach of any
representation or warranty made by Dynavax herein or in any certificate, instrument or document
delivered in connection and contemporaneously herewith, (B) any breach of any covenant, agreement
or obligation of Dynavax contained herein or in any certificate, instrument or document delivered
hereunder, or (C) any untrue statement of a material fact about Dynavax contained in the reports
filed by Dynavax with the SEC, or the omission therefrom of a material fact about Dynavax required
to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, to the extent that such reports are
attached to the Investment Overview; provided, that the information contained in a later
filed report filed prior to the date of this Agreement shall be deemed to update any related
information contained in a previously filed report (the items set forth herein in clauses
(A), (B) and (C) being hereinafter referred to as the “Holdings Claims”),



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and
(ii) in the case of Holdings being the Indemnifying Party, (x) any breach of any representation or
warranty made by Holdings herein or in any certificate, instrument or document delivered in
connection and contemporaneously herewith, (y) any breach of any covenant, agreement or obligation
of Holdings contained herein or in any certificate, instrument or document delivered hereunder, or
(z) any untrue statement or alleged untrue statement of a material fact about Holdings contained in
the Investment Overview or the omission or alleged omission therefrom of a material fact about
Holdings required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, (the items set forth herein
in clauses (x), (y) and (z) being hereinafter referred to as the “Dynavax
Claims”). To the extent that the foregoing undertaking by Dynavax, Holdings may be unenforceable
for any reason, such Party shall make the maximum contribution to the payment and satisfaction of
any Loss that is permissible under applicable law.




          Section 5.02 Notice of Claims. Any Indemnified Party that proposes to assert a right
to be indemnified under this Article V shall notify Dynavax or Holdings, as applicable (the
“Indemnifying Party”), promptly after receipt of notice of commencement of any action, suit or proceeding against
such Indemnified Party (an “Indemnified Proceeding”) in respect of which a claim is to be made
under this Article V, or the incurrence or realization of any Loss in respect of which a
claim is to be made under this Article V, of the commencement of such Indemnified
Proceeding or of such incurrence or realization, enclosing a copy of all relevant documents,
including all papers served and claims made, but the omission to so notify the applicable
Indemnifying Party promptly of any such Indemnified Proceeding or incurrence or realization shall
not relieve (x) such Indemnifying Party from any liability that it may have to such Indemnified
Party under this Article V or otherwise, except, as to such Indemnifying Party’s liability
under this Article V, to the extent, but only to the extent, that such Indemnifying Party
shall have been prejudiced by such omission, or (y) any other indemnitor from liability that it may
have to any Indemnified Party under the Operative Documents.




          Section 5.03 Defense of Proceedings. In case any Indemnified Proceeding shall be brought
against any Indemnified Party, it shall notify the applicable Indemnifying Party of the
commencement thereof as provided in Section 5.02, and such Indemnifying Party shall be
entitled to participate in, and provided such Indemnified Proceeding involves a claim
solely for money damages and does not seek an injunction or other equitable relief against the
Indemnified Party and is not a criminal or regulatory action, to assume the defense of, such
Indemnified Proceeding with counsel reasonably satisfactory to such Indemnified Party. After
notice from such Indemnifying Party to such Indemnified Party of such Indemnifying Party’s election
to so assume the defense thereof and the failure by such Indemnified Party to object to such
counsel within ten (10) Business Days following its receipt of such notice, such Indemnifying Party
shall not be liable to such Indemnified Party for legal or other expenses related to such
Indemnified Proceedings incurred after such notice of election to assume such defense except as
provided below and except for the reasonable costs of investigating, monitoring or cooperating in
such defense subsequently incurred by such Indemnified Party reasonably necessary in connection
with the defense thereof. Such Indemnified Party shall have the right to employ its counsel in any
such Indemnified Proceeding, but the reasonable fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless:



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     (i) the employment of counsel by such Indemnified Party at the expense of the
applicable Indemnifying Party has been authorized in writing by such Indemnifying Party;




     (ii) such Indemnified Party shall have reasonably concluded in its good faith (which
conclusion shall be determinative unless a court determines that such conclusion was not
reached reasonably and in good faith) that there is or may be a conflict of interest between
the applicable Indemnifying Party and such Indemnified Party in the conduct of the defense
of such Indemnified Proceeding or that there are or may be one or more different or
additional defenses, claims, counterclaims, or causes of action available to such
Indemnified Party (it being agreed that in any case referred to in this clause (ii)
such Indemnifying Party shall not have the right to direct the defense of such Indemnified
Proceeding on behalf of the Indemnified Party);




     (iii) the applicable Indemnifying Party shall not have employed counsel reasonably
acceptable to the Indemnified Party, to assume the defense of such Indemnified Proceeding
within a reasonable time after notice of the commencement thereof (provided,
however, that this clause (iii) shall not be deemed to constitute a waiver
of any conflict of interest that may arise with respect to any such counsel); or




     (iv) any counsel employed by the applicable Indemnifying Party shall fail to timely
commence or diligently conduct the defense of such Indemnified Proceeding and such failure
has materially prejudiced (or, in the reasonable judgment of the Indemnified Party, is in
danger of materially prejudicing) the outcome of such Indemnified Proceeding;



          in each of which cases the reasonable fees and expenses of counsel for such Indemnified Party
shall be at the expense of such Indemnifying Party. Only one counsel shall be retained by all
Indemnified Parties with respect to any Indemnified Proceeding, unless counsel for any Indemnified
Party reasonably concludes in good faith (which conclusion shall be determinative unless a court
determines that such conclusion was not reached reasonably and in good faith) that there is or may
be a conflict of interest between such Indemnified Party and one or more other Indemnified Parties
in the conduct of the defense of such Indemnified Proceeding or that there are or may be one or
more different or additional defenses, claims, counterclaims, or causes or action available to such
Indemnified Party.




          Section 5.04 Settlement. Without the prior written consent of such Indemnified Party, such
Indemnifying Party shall not settle or compromise, or consent to the entry of any judgment in, any
pending or threatened Indemnified Proceeding, unless such settlement, compromise, consent or
related judgment (i) includes an unconditional release of such Indemnified Party from all liability
for Losses arising out of such claim, action, investigation, suit or other legal proceeding, (ii)
provides for the payment of money damages as the sole relief for the claimant (whether at law or in
equity), (iii) involves no finding or admission of any violation of law or the rights of any Person
by the Indemnified Party, and (iv) is not in the nature of a criminal or regulatory action. No
Indemnified Party shall settle or compromise, or consent to the entry of any judgment in, any
pending or threatened Indemnified



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Proceeding in respect of which any payment would result hereunder
or under the Operative Documents without the prior written consent of the Indemnifying Party, such
consent not to be unreasonably conditioned, withheld or delayed.




ARTICLE VI




TRANSFER RESTRICTIONS




          Section 6.01 Transfer Restrictions. Holdings agrees (and agrees to cause all of its
members and any subsequent transferees thereof to so agree) that (i) it will not, directly or
indirectly, offer, sell, assign, transfer, grant or sell a participation in, pledge or otherwise
dispose of the Warrant or Warrant Shares (or solicit any offers to buy or otherwise acquire, or
take a pledge of, any Warrant) unless
such Warrant or Warrant Shares are registered and/or qualified under the Securities Act and
applicable state securities laws, or unless an exemption from the registration or qualification
requirements is otherwise available; provided, that Holdings may transfer the Warrant (or
part of its interest therein) or Warrant Shares to Investors, RRD and each Symphony Fund, and
Investors (but not any other member of Holdings) may further distribute Warrants or Warrant Shares
to its respective members; (ii) (A) no transfer of such Warrant, or (B) with respect to a private
placement of the Warrant Shares, no transfer of such Warrant Shares shall be effective or
recognized unless the transferor and the transferee make the representations and agreements
contained herein and furnish to Dynavax such certifications and other information as Dynavax may
reasonably request to confirm that any proposed transfer complies with the restrictions set forth
herein and any applicable laws; and (iii) (x) Warrants may only be transferred in minimum
denominations representing the right to purchase at least 50,000 Warrant Shares, and (y) prior to
the registration of Warrant Shares as contemplated in the Registration Rights Agreement, the
Warrant Shares may only be transferred in minimum denominations of at least 50,000 Warrant Shares;
provided, however, that in the event that any holder of a Warrant or Warrant Shares
holds a Warrant representing the right to purchase less than 50,000 Warrant Shares, or holds less
than 50,000 Warrant Shares, as the case may be, such holder shall be entitled to exercise all, but
not less than all, of the full amount of such Warrant and sell all, but not less than all, such
Warrant Shares delivered to it in connection therewith, notwithstanding the fact that the number of
such Warrant Shares is less than 50,000; provided, further, that Holdings agrees
(and agrees to cause its members and any subsequent transferees thereof to so agree), that with
respect to a Warrant, such holder of a Warrant will not sell or otherwise transfer any Warrant,
except in private placements to Accredited Investors.




          Section 6.02 Legends.




          (a) Holdings acknowledges and agrees that Dynavax shall affix to each certificate evidencing
an outstanding Warrant (and any certificates issued upon the transfer of the Warrant) a legend in
substantially the following form (a “Warrant Legend”):





“NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN THE SUBJECT OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE,


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AND THE SAME HAVE BEEN
(OR WILL BE, WITH RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE HEREOF)
ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID
ACT AND SUCH LAWS. NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.




THE WARRANT EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE WARRANT PURCHASE AGREEMENT, DATED AS OF
APRIL 18, 2006, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THIS WARRANT WILL BE
MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL
HAVE BEEN COMPLIED WITH.”



          Section 6.03 Warrant Legend Removal. If the certificates representing such Warrant
include a Warrant Legend (as set forth in Section 6.02 hereof), Dynavax shall, upon a
request from Holdings, or a member or subsequent transferee thereof, as soon as practicable but in
no event more than thirty (30) days after receiving such request, remove or cause to be removed (i)
if such Warrant ceases to be restricted securities, the securities law portion of the Warrant
Legend and/or (ii) in the event of a sale of such Warrant in compliance with the transfer
restrictions, the transfer restriction portion of the Warrant Legend, from such certificates
representing such Warrant as Holdings, or such member or transferee, shall designate, in accordance
with the terms hereof and, if applicable, in accordance with the terms of the applicable Warrant.




          Section 6.04 Improper Transfer. Any attempt to sell, assign, transfer, grant or sell
a participation in, pledge or otherwise dispose of any Warrant or any Warrant Shares, not in
compliance with this Agreement shall be null and void and Dynavax shall give no effect to such
attempted sale, assignment, transfer, grant, sale of a participation, pledge or other disposition.




          Section 6.05 Limits on Daily Disposition. Holdings and its Affiliates each agree that, in
the event that any holder of a Warrant exercises the Warrant and determines to dispose of its
Warrant Shares on the market, Holdings (and its Affiliates) or the transferee of Holdings of those
Warrant Shares will not sell or otherwise dispose in any single day of Warrant Shares totaling in
excess of 35,000 shares in the aggregate (as reported on the NASDAQ national market or such other
national exchange representing the primary exchange on which Dynavax Common Stock is listed);
provided, however, that Holdings (and its Affiliates) and any transferees may sell
or otherwise dispose of their Warrant Shares without regard to the share limitations hereunder in a
private placement to accredited investors; and provided further, that



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any holder of
Warrant Shares holding less than 35,000 shares shall not be subject to the restrictions set forth
in this Section 6.05. Holdings and its Affiliates shall notify any transferee of a Warrant
or Warrant Shares of the terms of this Section 6.05, but shall in no event be responsible
for monitoring the disposition of the Warrant Shares by any transferee.




ARTICLE VII




MISCELLANEOUS




          Section 7.01 Notice of Material Event. Each Party agrees that, upon it receiving
knowledge of a material event or development with respect to any of the transactions contemplated
hereby that, to the knowledge of its executive officers, is not known to the other Parties, such
Party shall notify the other Parties in writing within three (3) Business Days of the receipt of
such knowledge by any executive officer of such Party; provided, that the failure to
provide such notice shall not impair or otherwise be deemed a waiver of any rights any Party may
have arising from such material event or development, and that notice under this Section
7.01 shall not in itself constitute notice of any breach of any of the Operative Documents.




          Section 7.02 Notices. Any notice, request, demand, waiver, consent, approval, or
other communication which is required or permitted to be given to any Party hereto shall be in
writing and shall be deemed given only if delivered to the Party personally or sent to the Party by
facsimile transmission (promptly followed by a hard-copy delivered in accordance with this
Section 7.02), by next Business Day delivery by a nationally recognized courier service, or
by registered or certified mail (return receipt requested), with postage and registration or
certification fees thereon prepaid, addressed to the Party at its address set forth below:




          Dynavax:



Dynavax Technologies Corporation

2929 Seventh Street, Suite 100

Berkeley, CA 94710

Attn: Deborah Smeltzer, VP, Operations & CFO

Facsimile: (510) 848-1327




          Holdings:



Symphony Dynamo Holdings LLC

7361 Calhoun Place, Suite 325

Rockville, MD 20850

Attn: Joseph P. Clancy

Facsimile: (301) 762-6154




          with a copy to:



Symphony Capital Partners, L.P.



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875 Third Avenue, 18th Floor

New York, NY 10022

Attn: Mark Kessel

Facsimile: (212) 632-5401




          and



Symphony Strategic Partners, LLC

875 Third Avenue, 18th Floor

New York, NY 10022

Attn: Mark Kessel

Facsimile: (212) 632-5401



or to such other address as such Party may from time to time specify by notice given in the manner
provided herein to each other Party entitled to receive notice hereunder.




          Section 7.03 Governing Law; Consent to Jurisdiction and Service of Process.




          (a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York; except to the extent that this Agreement pertains to the internal
governance of Dynavax, and to such extent this Agreement shall be governed and construed in
accordance with the laws of the State of Delaware.




          (b) Each of the Parties hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court and any Delaware State court
or federal court of the United States of America sitting in The City of New York, Borough of
Manhattan or Wilmington, Delaware, and any appellate court from any jurisdiction thereof, in any
action or proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the Parties hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and determined in any such
New York State court, any such Delaware State court or, to the fullest extent permitted by law, in
such federal court. Each of the Parties agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that any
Party may otherwise have to bring any action or proceeding relating to this Agreement.




          (c) Each of the Parties irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York State or federal court, or any Delaware State or federal court. Each of the Parties hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. Each of the parties hereby consent
to service of process by mail.



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          Section 7.04 Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.




          Section 7.05 Entire Agreement. This Agreement (including any Annexes, Schedules, Exhibits
or other attachments here) constitutes the entire agreement between the Parties with respect to the
matters covered hereby and supersedes all prior agreements and understandings with respect to such
matters between the Parties.




          Section 7.06 Amendment and Waivers. The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except by a written instrument
signed by each of the Parties. Any Party may waive, solely with respect to itself, any one or more
of its rights hereunder without the consent of any other Party hereto; provided, that no
such waiver shall be effective unless set forth in a written instrument executed by the Party
hereto against whom such waiver is to be effective.




          Section 7.07 Counterparts. This Agreement may be executed in one or more counterparts,
each of which, when executed, shall be deemed an original but all of which taken together shall
constitute one and the same Agreement.




          Section 7.08 Assignment and Successors. Neither Dynavax nor Holdings may assign, delegate,
transfer, sell or otherwise dispose of (collectively, “Transfer”), in whole or in part, any or all
of its rights or obligations hereunder to any Person (a “Transferee”) without the prior written
approval of the other Party; provided, however, that Dynavax, without the prior
approval of the other Party, acting in accordance with Article 14 of the Amended and Restated
Research and Development Agreement, may make such Transfer to any Person which acquires all or
substantially all of Dynavax’s assets or business (or assets or business related to the Programs)
or which is the surviving or resulting Person in a merger or consolidation with Dynavax;
provided further, that in the event of any such Transfer, Dynavax or Holdings, as
applicable, shall provide written notice to the other Parties of any such Transfer not later than
thirty (30) days after such Transfer setting forth the identity and address of the Transferee and
summarizing the terms of the Transfer. In the event that the surviving or resulting “parent”
entity (the “Surviving Entity”) in a merger or acquisition involving Dynavax is an entity other
than Dynavax, then Holdings or any subsequent holder of a Warrant shall either exercise such
Warrant or surrender such Warrant in exchange for a new Warrant exercisable for shares of the
common stock of the Surviving Entity (the “Replacement Warrant”); provided, that:





     (i) If the terms of such merger or acquisition shall provide for consideration that
consists of a combination of cash and stock of the Surviving Entity, then any Replacement
Warrant issued to the holders of the Warrants shall be solely for stock of the
Surviving Entity, at an exchange ratio reflecting the total consideration paid by the
Surviving Entity at the time of such change in control as if the total consideration
(including cash) for each share of Dynavax Common Stock was instead paid only in stock of
the Surviving Entity at the time of such change of control (as illustrated on Exhibit
C hereto), and the holders of the Replacement Warrants shall have the


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registration
rights for stock issuable upon exercise of the Replacement Warrants as provided under the
Registration Rights Agreement; and




     (ii) If prior to the end of the Term, such a merger or acquisition shall occur and the
consideration for such merger or acquisition shall be paid entirely in cash, then any holder
of any outstanding Warrant shall then have the option to elect within fifteen (15) Business
Days of receiving notice of the public announcement of the merger or acquisition by written
notice of election to Dynavax, either (1) to retain such Warrant and the right to exercise
such Warrant for shares of Dynavax Common Stock in accordance with the terms of such Warrant
and this Agreement, which exercise shall occur no later than immediately prior to the
closing of such merger or acquisition; or (2) to surrender such outstanding Warrant to
Dynavax in consideration of a cash payment for each share of Dynavax Common Stock subject to
purchase under such Warrant in an amount equal to [ * ] (the “Warrant Surrender Price”).
The Warrant Surrender Price shall be paid upon the surrender of the Warrants promptly
following the closing of the all cash merger or acquisition. Any failure by the Holder to
deliver a written notice of election to Dynavax pursuant to this Section 7.08(ii)
shall be deemed an election of clause (1) of this Section 7.08(ii).


Following a merger or acquisition involving the payment of non-cash consideration in which Dynavax
is not the Surviving Entity, any reference to “Dynavax Common Stock” shall be deemed instead to
refer to the common stock of the Surviving Entity. For purposes of this Section 7.08
“common stock of the Surviving Entity” shall include stock of such corporation of any class which
is not preferred as to dividends or assets over any other class of stock of such corporation, and
which is not subject to redemption and shall also include any evidences of indebtedness, shares of
stock or other securities which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the occurrence of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 7.08 shall similarly apply to successive mergers, acquisitions, consolidations
or disposition of assets.




{SIGNATURES FOLLOW ON NEXT PAGE}



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          IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective
officers or other representatives thereunto duly authorized, as of the date first above written.




	 	 	 	 	 	 	 
	 	 	DYNAVAX TECHNOLOGIES CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Dino Dina	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dino Dina, M.D.	 	 
	 

	 	 	 	Title: President & Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	SYMPHONY DYNAMO HOLDINGS LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony Capital Partners, L.P.,	 	 
	 

	 	 	 	its Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony Capital GP, L.P.,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony GP, LLC,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Mark Kessel	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Mark Kessel	 	 
	 

	 	 	 	Title: Managing Member	 	 





[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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ANNEX A




CERTAIN DEFINITIONS




          “$” means United States dollars.




          “Accredited Investor” has the meaning set forth in Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended.




          “Act” means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq.




          “Ad Hoc Meeting” has the meaning set forth in Paragraph 6 of Annex B of the Amended and
Restated Research and Development Agreement.




          “Additional Funds” has the meaning set forth in Section 2(b) of the Funding Agreement.




          “Additional Funding Date” has the meaning set forth in Section 3 of the Funding Agreement.




          “Additional Party” has the meaning set forth in Section 13 of the Confidentiality Agreement.




          “Additional Regulatory Filings” means such Governmental Approvals as required to be made under
any law applicable to the purchase of the Symphony Dynamo Equity Securities under the Purchase
Option Agreement.




          “Adjusted Capital Account Deficit” has the meaning set forth in Section 1.01 of the Holdings
LLC Agreement.




          “Affected Member” has the meaning set forth in Section 27 of the Investors LLC Agreement.




          “Affiliate” means, with respect to any Person (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person, (ii) any officer, director,
general partner, member or trustee of such Person, or (iii) any Person who is an officer, director,
general partner, member or trustee of any Person described in clauses (i) or (ii) of this sentence.
For purposes of this definition, the terms “controlling,” “controlled by” or “under common control
with” shall mean the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person or entity, whether through the ownership of voting
securities, by contract or otherwise, or the power to elect at least 50% of the directors,
managers, general partners, or persons exercising similar authority with respect to such Person or
entities.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 








          “Amended and Restated Research and Development Agreement” means the Amended and Restated
Research and Development Agreement dated as of the Closing Date, among Dynavax, Holdings and
Symphony Dynamo.




          “Asset Value” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Auditors” means an independent certified public accounting firm of recognized national
standing.




          [ * ]




          “Bankruptcy Code” means the United States Bankruptcy Code.




     “Berna” has the meaning set forth in Section 11.1(a) of the Amended and Restated Research and
Development Agreement.



          “Business Day” means any day other than Saturday, Sunday or any other day on which commercial
banks in The City of New York or the City of San Francisco are authorized or required by law to
remain closed.




          “Cancer Products” mean [ * ].




          “Cancer Program” means the identification, development, manufacture and/or use of any Cancer
Products in accordance with the Development Plan.




          “Capital Contributions” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.




          “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases.




          “Cash Available for Distribution” has the meaning set forth in Section 1.01 of the Holdings
LLC Agreement.




          “Chair” has the meaning set forth in Paragraph 4 of Annex B to the Amended and Restated
Research and Development Agreement.




          “Change of Control” means and includes the occurrence of any of the following events, but
specifically excludes (i) acquisitions of capital stock directly from Dynavax for cash, whether in
a public or private offering, (ii) sales of capital stock by stockholders of Dynavax, and (iii)
acquisitions of capital stock by or from any employee benefit plan or related trust:





     (a) the merger, reorganization or consolidation of Dynavax into or with another
corporation or legal entity in which Dynavax’s stockholders holding the right to vote with
respect to matters generally immediately preceding such merger, reorganization


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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or consolidation, own less than fifty percent (50%) of the voting securities of the
surviving entity; or



          (b) the sale of all or substantially all of Dynavax’s assets or business.




          “Class A Member” means a holder of a Class A Membership Interest.




          “Class A Membership Interest” means a Class A Membership Interest in Holdings.




          “Class B Member” means a holder of a Class B Membership Interest.




          “Class B Membership Interest” means a Class B Membership Interest in Holdings.




          “Class C Member” means a holder of a Class C Membership Interest.




          “Class C Membership Interest” means a Class C Membership Interest in Holdings.




          “Closing Certificate for Section 5.1(e)” means the written certificate, pertaining to the
representations made by Dynavax under Section 5.1(e) of the Novated and Restated Technology License
Agreement, provided by Dynavax to Symphony Dynamo Holdings LLC and Symphony Dynamo on the Closing
Date.




          “Closing Certificate for Section 5.1(f)” means the written certificate, pertaining to the
representations made by Dynavax under Section 5.1(f) of the Novated and Restated Technology License
Agreement, provided by Dynavax to Symphony Dynamo Holdings LLC and Symphony Dynamo on the Closing
Date.




          “Client Schedules” has the meaning set forth in Section 5(b)(i) of the RRD Services Agreement.




          “Clinical Budget Component” has the meaning set forth in Section 4.1 of the Amended and
Restated Research and Development Agreement.




          “Closing Date” means April 18, 2006.




          “CMC” means the chemistry, manufacturing and controls documentation as required for filings
with Regulatory Authority relating to the manufacturing, production and testing of drug products.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Committed Capital” means $50,000,000.00.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Common Stock” means the common stock, par value $0.01 per share, of Symphony Dynamo.




          “Company Expenses” has the meaning set forth in Section 5.09 of the Holdings LLC Agreement.




          “Company Property” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Confidential Information” has the meaning set forth in Section 2 of the Confidentiality
Agreement.




          “Confidentiality Agreement” means the Confidentiality Agreement, dated as of the Closing Date,
among Symphony Dynamo, Holdings, Dynavax, each Symphony Fund, SCP, SSP, Investors, Symphony
Capital, RRD and Ann M. Arvin, M.D.




          “Conflict Transaction” has the meaning set forth in Article X of the Symphony 
Dynamo Charter.




          “Control” means, with respect to any material, information or intellectual property right,
that a Party owns or has a license to such item or right, and has the ability to grant the other
Party access, a license or a sublicense (as applicable) in or to such item or right as provided in
the Operative Documents without violating the terms of any agreement or other arrangement with any
third party.




          “Debt” of any Person means, without duplication:





(a) all indebtedness of such Person for borrowed money,




(b) all obligations of such Person for the deferred purchase price of property or services
(other than any portion of any trade payable obligation that shall not have remained unpaid for
91 days or more from the later of (A) the original due date of such portion and (B) the
customary payment date in the industry and relevant market for such portion),




(c) all obligations of such Person evidenced by bonds, notes, debentures or other similar
instruments,




(d) all obligations of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (whether or not the rights
and remedies of the seller or lender under such agreement in an event of default are limited to
repossession or sale of such property),




(e) all Capitalized Leases to which such Person is a party,




(f) all obligations, contingent or otherwise, of such Person under acceptance, letter of credit
or similar facilities,




(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for
value any Equity Securities of such Person,


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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(h) the net amount of all financial obligations of such Person in respect of Hedge Agreements,




(i) the net amount of all other financial obligations of such Person under any contract or other
agreement to which such Person is a party,




(j) all Debt of other Persons of the type described in clauses (a) through (i) above guaranteed,
directly or indirectly, in any manner by such Person, or in effect guaranteed, directly or
indirectly, by such Person through an agreement (A) to pay or purchase such Debt or to advance
or supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such Debt against
loss, (C) to supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such property is received or
such services are rendered) or (D) otherwise to assure a creditor against loss, and




(k) all Debt of the type described in clauses (a) through (i) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be secured by) any
Encumbrance on property (including accounts and contract rights) owned or held or used under
lease or license by such Person, even though such Person has not assumed or become liable for
payment of such Debt.



          “Development Budget” means the budget (comprised of the Management Budget Component and the
Clinical Budget Component) for the implementation of the Development Plan (the initial form of
which was agreed upon by Dynavax and Symphony Dynamo as of the Closing Date and attached to the
Amended and Restated Research and Development Agreement as Annex D thereto), as may be further
developed and revised from time to time in accordance with the Development Committee Charter and
the Amended and Restated Research and Development Agreement.




          “Development Committee” has the meaning set forth in Article 3 of the Amended and Restated
Research and Development Agreement.




          “Development Committee Charter” has the meaning set forth in Article 3 of the Amended and
Restated Research and Development Agreement.




          “Development Committee Member” has the meaning set forth in Paragraph 1 of Annex B to the
Amended and Restated Research and Development Agreement.




          “Development Plan” means the development plan covering all the Programs (the initial form of
which was agreed upon by Dynavax and Symphony Dynamo as of the Closing Date and attached to the
Amended and Restated Research and Development Agreement as Annex C thereto), as may be further
developed and revised from time to time in accordance with the Development Committee Charter and
the Amended and Restated Research and Development Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Development Services” has the meaning set forth in Section 1(b) of the RRD Services
Agreement.




          “Director(s)” has the meaning set forth in the Preliminary Statement of the Indemnification
Agreement.




          “Disclosing Party” has the meaning set forth in Section 3 of the Confidentiality Agreement.




          “Discontinuation Closing Date” has the meaning set forth in Section 11.3 of the Amended and
Restated Research and Development Agreement.




          “Discontinuation Date” means any date designated by Symphony Dynamo which shall occur on or
after the 90th day following the receipt by Dynavax of notice from Symphony Dynamo of
Symphony Dynamo’s intent to discontinue a Program in accordance with the terms of the Amended and
Restated Research and Development Agreement.




          “Discontinuation Option” has the meaning set forth in Section 11.3 of the Amended and Restated
Research and Development Agreement.




          “Discontinuation Price” has the meaning set forth in Section 11.3 of the Amended and Restated
Research and Development Agreement.




          “Discontinuation Price Dispute Notice” has the meaning set forth in Section 11.3(b) of the
Amended and Restated Research and Development Agreement.




          “Discontinued Program” has the meaning set forth in Section 2.11 of the Novated and Restated
Technology License Agreement.




          “Discontinuation Program Funding” has the meaning set forth in Section 11.3(b) of the Amended
and Restated Research and Development Agreement.




          “Disinterested Directors” has the meaning set forth in Article X of the Symphony Dynamo
Charter.




          “Distribution” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Dynavax” means Dynavax Technologies Corporation, a Delaware corporation.




          “Dynavax Common Stock” means the common stock, par value $0.001 per share, of Dynavax.




          “Dynavax Common Stock Valuation” has the meaning set forth in Section 2(e) of the Purchase
Option Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Dynavax Obligations” has the meaning set forth in Section 6.1 of the Amended and Restated
Research and Development Agreement.




          “Dynavax Personnel” has the meaning set forth in Section 8.4 of the Amended and Restated
Research and Development Agreement.




          “Dynavax Subcontractor” has the meaning set forth in Section 6.2 of the Amended and Restated
Research and Development Agreement.




          “Early Purchase Option Exercise” has the meaning set forth in Section 1(c)(iv) of the Purchase
Option Agreement.




          “Effective Registration Date” has the meaning set forth in Section 1(b) of the Registration
Rights Agreement




          “Encumbrance” means (i) any security interest, pledge, mortgage, lien (statutory or other),
charge or option to purchase, lease or otherwise acquire any interest, (ii) any adverse claim,
restriction, covenant, title defect, hypothecation, assignment, deposit arrangement, license or
other encumbrance of any kind, preference or priority, or (iii) any other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement).




          “Enhancements” means findings, improvements, discoveries, inventions, additions,
modifications, enhancements, derivative works, clinical development data, or changes to the
Licensed Intellectual Property and/or Regulatory Files, in each case whether or not patentable.




          “Equity Securities” means, with respect to any Person, shares of capital stock of (or other
ownership or profit interests in) such Person, warrants, options or other rights for the purchase
or other acquisition from such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights or options for the
purchase or other acquisition from such Person of such shares (or such other interests), and other
ownership or profit interests in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any date of
determination.




          “ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.




          “Excepted Debt” has the meaning set forth in Section 5(c)(iii) of the Purchase Option
Agreement.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.



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          “Excluded ISS” means [ * ].




          “Existing NDA” has the meaning set forth in Section 2 of the Confidentiality Agreement.




          “External Directors” has the meaning set forth in the preamble of the Confidentiality
Agreement.




          “FDA” means the United States Food and Drug Administration or its successor agency in the
United States.




          “FDA Sponsor” has the meaning set forth in Section 5.1 of the Amended and Restated Research
and Development Agreement.




          “Final Discontinuation Price” has the meaning set forth in Section 11.3(c) of the Amended and
Restated Research and Development Agreement.




          “Financial Audits” has the meaning set forth in Section 6.6 of the Amended and Restated
Research and Development Agreement.




          “Financing” has the meaning set forth in the Preliminary Statement of the Purchase Option
Agreement.




          “Fiscal Year” has the meaning set forth in each Operative Document in which it appears.




          “Form S-3” means the Registration Statement on Form S-3 as defined under the Securities Act.




          “FTE” has the meaning set forth in Section 4.1 of the Amended and Restated Research and
Development Agreement.




          “Funding Agreement” means the Funding Agreement, dated as of the Closing Date, among Dynavax,
SCP and Investors.




          “Funding Notice” has the meaning set forth in Section 2(b) of the Funding Agreement.




          “GAAP” means generally accepted accounting principles in effect in the United States of
America from time to time.




          “Governmental Approvals” means authorizations, consents, orders, declarations or approvals of,
or filings with, or terminations or expirations of waiting periods imposed by any Governmental
Authority.




          “Governmental Authority” means any United States or non-United States federal, national,
supranational, state, provincial, local, or similar government, governmental, regulatory



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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or administrative authority, agency or commission or any court, tribunal, or judicial or
arbitral body.




          “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority.




          “Hedge Agreement” means any interest rate swap, cap or collar agreement, interest rate future
or option contract, currency swap agreement, currency future or option contract or other similar
hedging agreement.




          “Hepatitis B Products” mean [ * ].




          “Hepatitis B Program” means the identification, development, manufacture and/or use of any
Hepatitis B Products in Accordance with the Development Plan.




          “Hepatitis C Products” mean [ * ].




          “Hepatitis C Program” means the identification, development, manufacture and/or use of any
Hepatitis C Products in Accordance with the Development Plan.




          “Holdings” means Symphony Dynamo Holdings LLC, a Delaware limited liability company.




          “Holdings Claims” has the meaning set forth in Section 5.01 of the Warrant Purchase Agreement.




          “Holdings LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of
Holdings, dated as of the Closing Date.




          “HSR Act Filings” means the premerger notification and report forms required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.




          “IND” means an Investigational New Drug Application, as described in 21 U.S.C. § 355(i)(1) and
21 C.F.R. § 312 in the regulations promulgated by the United States Food and Drug Administration,
or any foreign equivalent thereof.




          “Indemnification Agreement” means the Indemnification Agreement among Symphony Dynamo and the
Directors named therein, dated as of the Closing Date.




          “Indemnified Party” has the meaning set forth in each Operative Document in which it appears.




          “Indemnified Proceeding” has the meaning set forth in each Operative Document in which it
appears.




          “Indemnifying Party” has the meaning set forth in each Operative Document in which it appears.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Independent Accountant” has the meaning set forth in Section 11.3(c) of the Amended and
Restated Research and Development Agreement.




          “Initial Development Budget” means the initial development budget prepared by representatives
of Symphony Dynamo and Dynavax prior to the Closing Date, and attached to the Amended and Restated
Research and Development Agreement as Annex D thereto.




          “Initial Development Plan” means the initial development plan prepared by representatives of
Symphony Dynamo and Dynavax prior to the Closing Date, and attached to the Amended and Restated
Research and Development Agreement as Annex C thereto.




          “Initial Funds” has the meaning set forth in Section 2(a) of the Funding Agreement.




          “Initial Holdings LLC Agreement” means the Agreement of Limited Liability Company of Holdings,
dated January 10, 2006.




          “Initial Investors LLC Agreement” means the Agreement of Limited Liability Company of
Investors, dated January 10, 2006.




          “Initial LLC Member” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Interest Certificate” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.




          “Investment Company Act” means the Investment Company Act of 1940, as amended.




          “Investment Overview” means the investment overview describing the transactions entered into
pursuant to the Operative Documents.




          “Investment Policy” has the meaning set forth in Section 1(a)(vi) of the RRD Services
Agreement.




          “Investors” means Symphony Dynamo Investors LLC.




          “Investors LLC Agreement” means the Amended and Restated Agreement of Limited Liability
Company of Investors dated as of the Closing Date




          “IRS” means the U.S. Internal Revenue Service.




          “ISS” means any synthetic oligonucleotide sequence or chimeric oligonucleotide sequence that
modulates an immune response, including, but not limited to, such sequences referred to by Dynavax
as immunostimulatory sequences, chimeric immunomodulatory compounds and branched immunomodulatory
compounds.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Knowledge” means the actual (and not imputed) knowledge of the executive officers of Dynavax,
without the duty of inquiry or investigation.




          “Law” means any law, statute, treaty, constitution, regulation, rule, ordinance, order or
Governmental Approval, or other governmental restriction, requirement or determination, of or by
any Governmental Authority.




          “License” has the meaning set forth in the Preliminary Statement of the Purchase Option
Agreement.




          “Licensed Intellectual Property” means the Licensed Patent Rights, Symphony  Dynamo
Enhancements, Licensor Enhancements and the Licensed Know-How.




          “Licensed Know-How” means [ * ].




          (a) “Licensed Patent Rights” means:[ * ].




          “Licensor” means Dynavax.




          “Licensor Enhancements” means [ * ].




          “Lien” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Liquidating Event” has the meaning set forth in Section 8.01 of the Holdings LLC Agreement.




          “LLC Agreements” means the Initial Holdings LLC Agreement, the Holdings LLC Agreement, the
Initial Investors LLC Agreement and the Investors LLC Agreement.




          “Loss” has the meaning set forth in each Operative Document in which it appears.




          “Management Budget Component” has the meaning set forth in Section 4.1 of the Amended and
Restated Research and Development Agreement.




          “Management Fee” has the meaning set forth in Section 6(a) of the RRD Services Agreement.




          “Manager” means (i) for each LLC Agreement in which it appears, the meaning set forth in such
LLC Agreement, and (ii) for each other Operative Document in which it appears, RRD.




          “Management Services” has the meaning set forth in Section 1(a) of the RRD Services Agreement.




          “Manager Event” has the meaning set forth in Section 3.01(g) of the Holdings LLC Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Material Adverse Effect” means, with respect to any Person, a material adverse effect on (i)
the business, assets, property or condition (financial or otherwise) of such Person or, (ii) its
ability to comply with and satisfy its respective agreements and obligations under the Operative
Documents or, (iii) the enforceability of the obligations of such Person of any of the Operative
Documents to which it is a party.




          “Material Subsidiary” means, at any time, a Subsidiary of Dynavax having assets in an amount
equal to at least 5% of the amount of total consolidated assets of Dynavax and its Subsidiaries
(determined as of the last day of the most recent reported fiscal quarter of Dynavax) or revenues
or net income in an amount equal to at least 5% of the amount of total consolidated revenues or net
income of Dynavax and its Subsidiaries for the 12-month period ending on the last day of the most
recent reported fiscal quarter of Dynavax.




          “Medical Discontinuation Event” means [ * ].




          “Membership Interest” means (i) for each LLC Agreement in which it appears, the meaning set
forth in such LLC Agreement, and (ii) for each other Operative Document in which it appears, the
meaning set forth in the Holdings LLC Agreement.




          “NASDAQ” means the National Association of Securities Dealers Automated Quotation System.




          “NDA” means a New Drug Application, as defined in the regulations promulgated by the United
States Food and Drug Administration, or any foreign equivalent thereof.




          “Non-Dynavax Capital Transaction” means any (i) sale or other disposition of all or part of
the Symphony Dynamo Shares or all or substantially all of the operating assets of Symphony Dynamo,
to a Person other than Dynavax or an Affiliate of Dynavax or (ii) distribution in kind of the
Symphony Dynamo Shares following the expiration of the Purchase Option.




          “Non-Symphony Dynamo ISS” means [ * ].




          “Novated and Restated Technology License Agreement” means the Novated and Restated
Technology License Agreement, dated as of the Closing Date, among Dynavax, Symphony Dynamo and
Holdings.




          “Operative Documents” means, collectively, the Indemnification Agreement, the Holdings LLC
Agreement, the Purchase Option Agreement, the Warrant Purchase Agreement, the Registration Rights
Agreement, the Subscription Agreement, the Technology License Agreement, the Novated and Restated
Technology License Agreement, the RRD Services Agreement, the Research and Development Agreement,
the Amended and Restated Research and Development Agreement, the Confidentiality Agreement, the
Funding Agreement and each other certificate and agreement executed in connection with any of the
foregoing documents.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Organizational Documents” means any certificates or articles of incorporation or formation,
partnership agreements, trust instruments, bylaws or other governing documents.




          “Partial Stock Payment” has the meaning set forth in Section 3(a)(iii) of the Purchase Option
Agreement.




          “Party(ies)” means, for each Operative Document or other agreement in which it appears, the
parties to such Operative Document or other agreement, as set forth therein. With respect to any
agreement in which a provision is included therein by reference to a provision in another
agreement, the term “Party” shall be read to refer to the parties to the document at hand, not the
agreement that is referenced.




          “Payment Terms” has the meaning set forth in Section 8.2 of the Amended and Restated Research
and Development Agreement.




          “Percentage” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Permitted Investments” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.




          “Permitted Lien” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Person” means any individual, partnership (whether general or limited), limited liability
company, corporation, trust, estate, association, nominee or other entity.




          “Personnel” of a Party means such Party, its employees, subcontractors, consultants,
representatives and agents.




          “Prime Rate” means the quoted “Prime Rate” at JPMorgan Chase Bank or, if such bank ceases to
exist or is not quoting a base rate, prime rate reference rate or similar rate for United States
dollar loans, such other major money center commercial bank in New York City selected by the
Manager.




          “Products” means Cancer Products, Hepatitis B Products and Hepatitis C Products.




          “Profit” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “Program Option” has the meaning set forth in Section 11.1(a) of the Amended and Restated
Research and Development Agreement.




          “Program Option Closing Date” has the meaning set forth in Section 11.1(b) of the Amended and
Restated Research and Development Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Program Option Exercise Date” has the meaning set forth in Section 11.1(b) of the Amended and
Restated Research and Development Agreement.




          “Program Option Exercise Notice” has the meaning set forth in Section 11.1(b) of the Amended
and Restated Research and Development Agreement.




          “Program Option Period” has the meaning set forth in Section 11.1(a) of the Amended and
Restated Research and Development Agreement.




          “Programs” means Cancer Program, Hepatitis B Program and Hepatitis C Program.




          “Protocol” means a written protocol that meets the substantive requirements of Section 6 of
the ICH Guideline for Good Clinical Practice as adopted by the FDA, effective May 9, 1997 and is
included within the Development Plan or later modified or added to the Development Plan pursuant to
the Amended and Restated Research and Development Agreement.




          “Public Companies” has the meaning set forth in Section 5(e) of the Purchase Option Agreement.




          “Purchase Option” has the meaning set forth in Section 1(a) of the Purchase Option Agreement.




          “Purchase Option Agreement” means this Purchase Option Agreement dated as of the Closing Date,
among Dynavax, Holdings and Symphony Dynamo.




          “Purchase Option Closing” has the meaning set forth in Section 2(a) of the Purchase Option
Agreement.




          “Purchase Option Closing Date” has the meaning set forth in Section 2(a) of the Purchase
Option Agreement.




          “Purchase Option Commencement Date” has the meaning set forth in Section 1(c)(iii) of the
Purchase Option Agreement.




          “Purchase Option Exercise Date” has the meaning set forth in Section 2(a) of the Purchase
Option Agreement.




          “Purchase Option Exercise Notice” has the meaning set forth in Section 2(a) of the Purchase
Option Agreement.




          “Purchase Option Interim Date” has the meaning set forth in Section 2(b)(i) of the Purchase
Option Agreement.




          “Purchase Option Period” has the meaning set forth in Section 1(c)(iii) of the Purchase Option
Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




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          “Purchase Price” has the meaning set forth in Section 2(b) of the Purchase Option Agreement.




          “Put Option” has the meaning set forth in Section 2A of the Purchase Option Agreement.




          “Put Option Exercise Notice” has the meaning set forth in Section 2A of the Purchase Option
Agreement.




          “QA Audits” has the meaning set forth in Section 6.5 of the Amended and Restated Research and
Development Agreement.




          “Quarterly Price” has the meaning set forth in Section 2(b)(i) of the Purchase Option
Agreement.




          “Regents” has the meaning set forth in Section 3.1 of the Novated and Restated Technology
License Agreement.




          “Regents Agreement” has the meaning set forth in Section 3.1 of the Novated and Restated
Technology License Agreement.




          “Registration Rights Agreement” means the Registration Rights Agreement dated as of the
Closing Date, between Dynavax and Holdings.




          “Registration Statement” has the meaning set forth in Section 1(b) of the Registration Rights
Agreement.




          “Regulatory Authority” means the United States Food and Drug Administration, or any successor
agency in the United States, or any health regulatory authority(ies) in any other country that is a
counterpart to the FDA and has responsibility for granting registrations or other regulatory
approval for the marketing, manufacture, storage, sale or use of drugs in such other country.




          “Regulatory Allocation” has the meaning set forth in Section 3.06 of the Holdings LLC
Agreement.




          “Regulatory Files” means any IND, NDA or any other filings filed with any Regulatory Authority
with respect to the Programs.




          “Related Oncology Products Agreement” has the meaning set forth in Section 11.4 of the Amended
and Restated Research and Development Agreement.




          “Replacement Warrant(s)” has the meaning set forth in Section 7.08 of the Warrant Purchase
Agreement.




          “Representative” of any Person means such Person’s shareholders, principals, directors,
officers, employees, members, managers and/or partners.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Annex A to the 
Warrant Purchase Agreement




15









 








          “Research and Development Agreement” means the Research and Development Agreement dated as of
the Closing Date, between Dynavax and Holdings.




     “Rhein” has the meaning set forth in Section 11.1(a) of the Amended and Restated Research and
Development Agreement.



     “Rhein Sale Agreement” has the meaning set forth in Section 11.2(a) of the Amended and
Restated Research and Development Agreement.



          “RRD” means RRD International, LLC, a Delaware limited liability company.




          “RRD Indemnified Party” has the meaning set forth in Section 10(a) of the RRD Services
Agreement.




          “RRD Loss” has the meaning set forth in Section 10(a) of the RRD Services Agreement.




          “RRD Parties” has the meaning set forth in Section 9(e) of the RRD Services Agreement.




          “RRD Personnel” has the meaning set forth in Section 1(a)(ii) of the RRD Services Agreement.




          “RRD Services Agreement” means the RRD Services Agreement between Symphony Dynamo and RRD,
dated as the Closing Date, 2006.




          “Schedule K-1” has the meaning set forth in Section 9.02(a) of the Holdings LLC Agreement.




          “Scheduled Meeting” has the meaning set forth in Paragraph 6 of Annex B of the Amended and
Restated Research and Development Agreement.




          “Scientific Discontinuation Event” has the meaning set forth in Section 4.2(c) of the Amended
and Restated Research and Development Agreement.




          “SCP” means Symphony Capital Partners, L.P., a Delaware limited partnership.




          “SD Program Option” has the meaning set forth in Section 11.2(b) of the Amended and Restated
Research and Development Agreement.




          “SD Program Option Exercise Notice” has the meaning set forth in Section 11.2(b) of the
Amended and Restated Research and Development Agreement.




          “SEC” means the United States Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Selected ISS” means [ * ].



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Annex A to the 
Warrant Purchase Agreement




16









 








          “Shareholder” means any Person who owns any Symphony Dynamo Shares.




          “Solvent” has the meaning set forth in Section 1.01 of the Holdings LLC Agreement.




          “SSP” means Symphony Strategic Partners, LLC, a Delaware limited liability company.




          “Stock Payment Date” has the meaning set forth in Section 2 of the Subscription Agreement.




          “Stock Purchase Price” has the meaning set forth in Section 2 of the Subscription Agreement.




          “Subcontracting Agreement” has the meaning set forth in Section 6.2 of the Amended and
Restated Research and Development Agreement.




          “Subscription Agreement” means the Subscription Agreement between Symphony Dynamo and
Holdings, dated as the Closing Date.




          “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon the occurrence of any
contingency); (b) the interest in the capital or profits of such partnership, joint venture or
limited liability company; or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person’s other Subsidiaries.




          “Surviving Entity” means the surviving or resulting “parent” legal entity which is surviving
entity to Dynavax after giving effect to a Change of Control.




          “Symphony Capital” means Symphony Capital LLC, a Delaware limited liability company.




          “Symphony Dynamo” means Symphony Dynamo, Inc., a Delaware corporation.




          “Symphony Dynamo Auditors” has the meaning set forth in Section 5(b) of the RRD Services
Agreement.




          “Symphony Dynamo Board” means the board of directors of Symphony Dynamo.




          “Symphony Dynamo By-laws” means the By-laws of Symphony Dynamo, as adopted by resolution of
the Symphony Dynamo Board on the Closing Date.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Annex A to the 
Warrant Purchase Agreement




17









 








          “Symphony Dynamo Charter” means the Amended and Restated Certificate of Incorporation of
Symphony Dynamo, dated as of the Closing Date.




          “Symphony Dynamo Director Event” has the meaning set forth in Section 3.01(h)(i) of the
Holdings LLC Agreement.




          “Symphony Dynamo Enhancements” means [ * ].




          “Symphony Dynamo Equity Securities” means the Common Stock and any other stock or shares
issued by Symphony Dynamo.




          “Symphony Dynamo Loss” has the meaning set forth in Section 10(b) of the RRD Services
Agreement.




          “Symphony Dynamo Shares” has the meaning set forth in Section 2.02 of the Holdings LLC
Agreement.




          “Symphony Fund(s)” means Symphony Capital Partners, L.P., a Delaware limited partnership, and
Symphony Strategic Partners, LLC, a Delaware limited liability company.




          “Tangible Materials” means [ * ].




          “Tax Amount” has the meaning set forth in Section 4.02 of the Holdings LLC Agreement.




          “Technology License Agreement” means the Technology License Agreement, dated as of the Closing
Date, between Dynavax and Holdings.




          “Term” has the meaning set forth in Section 4(b)(iii) of the Purchase Option Agreement, unless
otherwise stated in any Operative Document.




          “Territory” means the world.




          “Third Party IP” has the meaning set forth in Section 2.11 of the Novated and Restated
Technology License Agreement.




          “Third Party Licensor” means a third party from which Dynavax has received a license or
sublicense to Licensed Intellectual Property.




          “Transfer” has for each Operative Document in which it appears the meaning set forth in such
Operative Document.




          “Transferee” has, for each Operative Document in which it appears, the meaning set forth in
such Operative Document.




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.



Annex A to the 
Warrant Purchase Agreement




18









 





          “Voluntary Bankruptcy” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.




          “Warrant(s)” means the “Warrant” as defined in Section 2.01 of the Warrant Purchase Agreement,
and/or any successor certificates exercisable for Warrant Shares issued by Dynavax.




          “Warrant Closing” has the meaning set forth in Section 2.03 of the Warrant Purchase Agreement.




          “Warrant Date” has the meaning set forth in Section 2.02 of the Warrant Purchase Agreement.




          “Warrant Purchase Agreement” means the Warrant Purchase Agreement, dated as of the Closing
Date, between Dynavax and Holdings.




          “Warrant Shares” has the meaning set forth in Section 2.01 of the Warrant Purchase Agreement.




          “Warrant Surrender Price” has the meaning set forth in Section 7.08 of the Warrant Purchase
Agreement.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Annex A to the 
Warrant Purchase Agreement




19









 








EXHIBIT A




April 18, 2006




Symphony Dynamo Holdings LLC

7361 Calhoun Place, Suite 325

Rockville, MD 20850



Dear Ladies and Gentlemen:



We have acted as counsel for Dynavax Technologies Corporation, a Delaware corporation (the
“Company”), in connection with the financing of certain of the Company’s research and development
programs (the “Financing”). In connection with the Financing, the Company is entering into the
agreements listed on Schedule I hereto (collectively, the “Transaction Agreements”). We are
rendering this opinion pursuant to Section 3.02(d) of the Warrant Purchase Agreement.



In connection with this opinion, we have examined and relied upon the representations and
warranties as to factual matters contained in and made pursuant to the Transaction Agreements by
the various parties and originals, or copies certified to our satisfaction, of such records,
documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.



As to certain factual matters, we have relied upon certificates of officers of the Company and have
not sought to independently verify such matters. Where we render an opinion “to our knowledge” or
concerning an item “known to us” or our opinion otherwise refers to our knowledge, it is based
solely upon (i) an inquiry of attorneys within this firm who have represented the Company in this
transaction, (ii) receipt of a certificate executed by an officer of the Company covering such
matters and (iii) such other investigation, if any, that we specifically set forth herein.



In rendering this opinion, we have assumed: the authenticity of all documents submitted to
us as originals; the conformity to originals of all documents submitted to us as copies; the
accuracy, completeness and authenticity of certificates of public officials; the due authorization,
execution and delivery of all documents (except the due authorization, execution and delivery by
the Company of the Transaction Agreements), where authorization, execution and delivery are
prerequisites to the effectiveness of such documents; and the genuineness and authenticity of all
signatures on original documents (except the signatures on behalf of the Company on the Transaction
Agreements). We have also assumed: that all individuals executing and delivering documents had
the legal capacity to so execute and deliver; that the Transaction Agreements are obligations
binding upon the parties thereto other than the Company; that the parties to the Transaction
Agreements other than the Company have filed any required California franchise or



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 





Symphony Dynamo Holdings LLC
 Page 2



income tax returns and have paid any required California franchise or income taxes; and that there
are no extrinsic agreements or understandings among the parties to the Transaction Agreements or to
the Material Agreements (as defined below) that would modify or interpret the terms of any such
agreements or the respective rights or obligations of the parties thereunder.



Our opinion is expressed only with respect to the federal laws of the United States of America and
the laws of the State of California and the General Corporation Law of the State of Delaware. We
note that the parties to the Transaction Agreements have designated the laws of the State of New
York as the laws governing the Transaction Agreements. Our opinion in paragraph 6 below as to the
validity, binding effect and enforceability of the Transaction Agreements is premised upon the
result that would obtain if a California court were to apply the internal laws of the State of
California (notwithstanding the designation of the laws of the State of New York) to the
interpretation and enforcement of the Transaction Agreements. We express no opinion as to whether
the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any
jurisdiction other than those identified above are applicable to the subject matter hereof, and we
have not obtained any opinion of counsel under the laws of the State of New York.



We are not rendering any opinion as to any statute, rule, regulation, ordinance, decree or
decisional law relating to antitrust, banking, land use, environmental, pension, employee benefit,
tax, fraudulent conveyance, usury, laws governing the legality of investments for regulated
entities, regulations T, U or X of the Board of Governors of the Federal Reserve System or local
law. Furthermore, we express no opinion with respect to compliance with antifraud laws, rules or
regulations relating to securities or the offer and sale thereof; compliance with fiduciary duties
by the Company’s Board of Directors or stockholders; compliance with safe harbors for disinterested
Board of Director or stockholder approvals; compliance with state securities or blue sky laws
except as specifically set forth below; or compliance with laws that place limitations on corporate
distributions.



With regard to our opinion in paragraph 1 below, we have relied solely upon a certificate of the
Secretary of State of the State of Delaware as of a recent date.



With regard to our opinion in paragraph 3 below, with respect to the due and valid authorization of
each of the Transaction Documents, we have relied solely upon (i) a certificate of an officer of
the Company, (ii) a review of the certificate of incorporation and bylaws of the Company, (iii) a
review of the resolutions certified by an officer of the Company, (iv) and a review of the Delaware
General Corporation Law.



With regard to our opinion paragraph 4 below concerning material defaults under and any material
breaches of any agreement identified on Schedule II hereto, we have relied solely upon (i) a
certificate of an officer of the Company, (ii) a list supplied to us by the Company of material
agreements to which the Company is a party, or by which it is bound, a copy of which is attached



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 





Symphony Dynamo Holdings LLC
 Page 3



hereto as Schedule II (the “Material Agreements”) and (iii) an examination of the Material
Agreements in the form provided to us by the Company. We have made no further investigation.
Further, with regard to our opinion in paragraph 4 below concerning Material Agreements, we express
no opinion as to (i) financial covenants or similar provisions therein requiring financial
calculations or determinations to ascertain compliance, (ii) provisions therein relating to the
occurrence of a “material adverse event” or words of similar import or (iii) any statement or
writing that may constitute parol evidence bearing on interpretation or construction.



With regard to our opinion in paragraph 7 below, we express no opinion to the extent that,
notwithstanding its current reservation of shares of Common Stock, future issuances of securities
of the Company and/or antidilution adjustments to outstanding securities of the Company may cause
the Warrant Shares or the Dynavax Common Stock to exceed the number of shares of Common Stock that
then remain authorized but unissued.



With regard to our opinion in paragraph 8 concerning exemption from registration, our opinion is
expressed only with respect to the offer and sale of the Warrant or the Warrant Shares without
regard to any offers or sales of securities occurring prior to or subsequent to the date hereof.



With regard to our opinion in paragraph 9 below, we have based our opinion, to the extent we
consider appropriate, on Rule 3a-8 under the Investment Company Act of 1940, as amended, and a
certificate of an officer of the Company as to compliance with each of the requirements necessary
to comply with Rule 3a-8. We have conducted no further investigation.



On the basis of the foregoing, in reliance thereon and with the foregoing qualifications, we are of
the opinion that:





	1.	 	The Company has been duly incorporated and is a validly existing corporation in good standing
under the laws of the State of Delaware.
	 
	2.	 	The Company has the corporate power to execute, deliver and perform its obligations under the
Transaction Agreements.
	 
	3.	 	Each of the Transaction Agreements has been duly and validly authorized, executed and
delivered by the Company. The offer and sale of the Warrant (as defined in the Warrant
Purchase Agreement) has been duly authorized by the Company.
	 
	4.	 	The execution and delivery of the Transaction Agreements by the Company and the issuance of
the Warrant pursuant thereto and the Warrant Shares assuming the exercise of the Warrant on
the date hereof, will not, (a) violate any provision of the Company’s certificate of
incorporation or by-laws, (b) violate any governmental statute, rule or regulation which in
our experience is typically applicable to transactions of the nature contemplated by the
Transaction Agreements, (c) violate any order, writ, judgment,






	 	 	[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 











Symphony Dynamo Holdings LLC
 Page 4





	 	 	injunction, decree, determination or award which has been entered against the Company and of
which we are aware or (d) constitute a material default under or a material breach of any
Material Agreement, in the case of clauses (c) and (d) to the extent such default or breach
would materially and adversely affect the Company.
	 
	5.	 	All consents, approvals, authorizations or orders of, and filings, registrations and
qualifications with any U.S. Federal or California regulatory authority or governmental body
required for the due execution or delivery by the Company of any Transaction Agreement and the
sale and issuance of the Warrant have been made or obtained, except (a) for the filing of a
Form D pursuant to Securities and Exchange Commission Regulation D and (b) for the filing of
the notice to be filed under California Corporations Code Section 25102.1(d).
	 
	6.	 	Each of the Transaction Agreements constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its respective terms, except as rights to
indemnity and contribution under Sections 6 and 7 of the Registration Rights Agreement,
Section 10 of the Purchase Option Agreement, Article V of the Warrant Purchase Agreement,
Section 15 of the Research and Development Agreement, Section 15 of the Amended and Restated
Research and Development Agreement, Section 6 of the Technology License Agreement and Section
6 of the Novated and Restated Technology License Agreement may be limited by applicable laws
and except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
arrangement, suretyship, dissolution, moratorium, receivership or other similar laws affecting
creditors’ rights and the law of fraudulent transfer, and subject to state law, federal law,
or general equity principles and to limitations on availability of equitable relief, including
specific performance, regardless of whether enforcement is considered in a proceeding in
equity or at law.
	 
	7.	 	The Warrant Shares (as defined in the Warrant Purchase Agreement) and, the Dynavax Common
Stock (as defined in the Purchase Option Agreement), when sold and issued in accordance with
the terms of the Warrant or the Purchase Option Agreement, as applicable, will be validly
issued, fully paid and non-assessable, and the issuance of the Warrant Shares is not be
subject to preemptive rights pursuant to the General Corporation Law of the State of Delaware,
the certificate of incorporation or by-laws of the Company or similar rights to subscribe
pursuant to any Material Agreement.
	 
	8.	 	The offer and sale of the Warrant and Warrant Shares (assuming exercise of the Warrant on the
date hereof) are exempt from the registration requirements of the Securities Act of 1933, as
amended, subject to the timely filing of a Form D pursuant to Securities and Exchange
Commission Regulation D.




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 








Symphony Dynamo Holdings LLC
 Page 5





	9.	 	The Company is not an “investment company” as defined in the Investment Company Act of 1940,
as amended.





[ * ]



This opinion is intended solely for your benefit and is not to be made available to or be relied
upon by any other person, firm, or entity without our prior written consent.




	 	 	 	 	 
	Very truly yours,	 	 
	 
	 	 	 	 
	Cooley Godward LLP	 	 
	 
	 	 	 	 
	By:

	 	     /s/ Robert L. Jones	 	 
	 

	 	 	 	 
	 

	 	  Robert L. Jones	 	 





[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




 









 








Schedule I




List of Transaction Agreements





	1.	 	Warrant Purchase Agreement, dated as of April 18, 2006 between the Company and Symphony
Dynamo Holdings LLC (the “Warrant Purchase Agreement”).
	 
	2.	 	Warrant to purchase 2,000,000 shares of common stock of the Company, dated as of April 18,
2006 (the “Warrant”).
	 
	3.	 	Purchase Option Agreement, dated as of April 18, 2006, among the Company, Symphony Dynamo
Holdings LLC and Symphony Dynamo, Inc. (the “Purchase Option Agreement”).
	 
	4.	 	Research and Development Agreement, dated as of April 18, 2006,
between the Company and Symphony Dynamo Holdings LLC (the “Research
and Development Agreement”).

	 
	5.	 	 Amended & Restated Research and Development Agreement, dated as of
April 18, 2006 among the Company, Symphony Dynamo, Inc. and Symphony
Dynamo Holdings LLC (the “Amended & Restated Research and Development
Agreement”).
	 
	6.	 	 Technology License Agreement, dated as of April 18, 2006 between the Company and Symphony Dynamo Holdings LLC (the “Technology License Agreement”).
	 
	7.	 	Novated and Restated Technology License Agreement, dated as of April 18, 2006, among the
Company, Symphony Dynamo, Inc. and Symphony Dynamo Holdings LLC (the “Novated and Restated
Technology License Agreement”).
	 
	8.	 	Confidentiality Agreement, dated as of April 18, 2006, among the Company, Symphony Dynamo,
Inc., Symphony Dynamo Holdings LLC, Symphony Capital Partners, L.P., Symphony Strategic
Partners, LLC, Symphony Dynamo Investors LLC, Symphony Capital LLC, RRD International, LLC,
and Ann M. Arvin, M.D. (the “Confidentiality Agreement”).
	 
	9.	 	Funding Agreement, dated as of April 18, 2006, among the Company, Symphony Capital Partners,
L.P., Symphony Dynamo Holdings LLC and Symphony Dynamo Investors, LLC (the “Funding
Agreement”).
	 
	10.	 	Registration Rights Agreement, dated as of April 18, 2006, between the Company and Symphony
Dynamo Holdings LLC (the “Registration Rights Agreement”).




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





 









 








Schedule II




List of Material Agreements




[ * ]



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





 









 








EXHIBIT B




FORM OF WARRANT



NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN THE SUBJECT OF
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE, AND THE SAME HAVE BEEN (OR WILL BE, WITH RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF) ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.



THE WARRANT EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE WARRANT PURCHASE AGREEMENT, DATED AS OF APRIL 18, 2006, COPIES OF WHICH ARE ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THIS WARRANT WILL BE
MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.




DYNAVAX TECHNOLOGIES CORPORATION




WARRANT TO PURCHASE COMMON STOCK




April 18, 2006




Void After April 18, 2011




          This Certifies That, for value received, Symphony Dynamo Holdings LLC, a
Delaware limited liability company, with its principal office at 7361 Calhoun Place, Suite 325,
Rockville, MD 20850, or its assigns (the “Holder”), is entitled to subscribe for and purchase at
the Exercise Price (as defined below) from Dynavax Technologies Corporation, a Delaware
corporation, with its principal office at 2929 Seventh Street, Suite 100, Berkeley, CA 94710-2753
(the “Company”), Two Million (2,000,000) shares of Common Stock, par value $0.001 per share, of the
Company (the “Common Stock”).




     This Warrant is being issued pursuant to the terms of the Warrant Purchase Agreement, dated as
of April 18, 2006, between the Company and Holder (the “Warrant Purchase Agreement”).


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




1









 





     1. Definitions. Capitalized terms used but not defined herein are used as defined in
the Warrant Purchase Agreement. As used herein, the following terms shall have the following
respective meanings:



          (a) “Common Stock” shall mean shares of Dynavax Technologies Corporation Common Stock, par
value $0.001.




          (b) “Exercise Period” shall mean the period commencing one hundred eighty (180) days following
the date hereof and ending on April 18, 2011.




          (c) “Exercise Price” shall mean $7.32 per share, subject to adjustment pursuant to Section 4
below.




          (d) “Exercise Shares” shall mean the outstanding and unexercised shares of Common Stock
issuable upon exercise of this Warrant from time to time, subject to adjustment pursuant to the
terms herein, including but not limited to adjustment pursuant to Section 4 below.




          (e) “Purchase Option” shall have the meaning set forth in the Warrant Purchase Agreement.




     2. Exercise of Warrant. 



          2.1 Generally. The rights represented by this Warrant may be exercised in whole or in part at
any time during the Exercise Period, by delivery of the following to the Company at its address set
forth above (or at such other address as it may designate pursuant to Section 12 hereof):




          (a) an executed Notice of Exercise in the form attached hereto;




          (b) payment of the Exercise Price of the shares thereby subscribed for by means of any of the
following: (i) wire transfer; (ii) cashier’s check drawn on a U.S. bank made out to the Company;
or (iii) a cashless exercise pursuant to Section 2.2; and




          (c) this Warrant.




          Upon the exercise of the rights represented by this Warrant, a certificate or certificates for
the Exercise Shares so purchased, registered in the name of the Holder or persons affiliated with
the Holder, if the Holder so designates, shall be issued and delivered to the Holder as soon as
practicable, but in no event later than thirty (30) days, after the date of exercise pursuant to
this Section 2.1. The Company shall, upon request of the Holder, if available and if allowed under
applicable securities laws, use commercially reasonable efforts to deliver Exercise Shares
electronically through the Depository Trust Corporation or another established clearing corporation
performing similar functions, or if requested by Holder, certificates evidencing the Exercise
Shares. If this Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the Exercise Shares, deliver to Holder a new Warrant evidencing the rights of Holder to
purchase the unexercised Exercise Shares remaining under this Warrant, which new Warrant shall in
all other respects be identical to this Warrant.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 2









 








          The person in whose name any Exercise Shares are to be issued upon exercise of this Warrant
shall be deemed to have become the holder of record of such shares on the date on which the Notice
of Exercise, this Warrant and payment of the Exercise Price and all taxes required to be paid by
the Holder, if any, were made, irrespective of the date of delivery of any certificate or
certificates evidencing the Exercise Shares, except that, if the date of such surrender and payment
is a date when the stock transfer books of the Company are closed, such person shall be deemed to
have become the holder of the Exercise Shares at the close of business on the next business day on
which the stock transfer books are open.




          2.2 Cashless Exercise. The Holder may exercise the Warrant pursuant to Section 2.1(b)(iii)
and receive shares equal to the value (as determined below) of this Warrant (or the portion thereof
being exercised) by delivery and notice of cashless exercise in accordance with Section 2.1, in
which event the Company shall issue to the Holder a number of shares of Common Stock computed using
the following formula:




	 	 	 	 	 	 	 
	 

	 	X =
	 	Y (A-B)	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	A	 	 






			
	Where X =	 	the number of shares of Common Stock to be issued to the Holder






			
	Y =	 	the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised, the portion of
the Warrant being exercised (at the date of such calculation)






			
	A =	 	the fair market value of one share of Common Stock (at the
date of such calculation)






			
	B =	 	Exercise Price (as adjusted to the date of such calculation)





          For purposes of the above calculation, the fair market value of one share of Common Stock
shall equal the average closing price of the Common Stock, as reported by the NASDAQ National
Market, or other national exchange that is then the primary exchange on which the Common Stock is
listed (the “the Principal Market”), for the thirty (30) trading days immediately preceding the
second trading day prior to the date on which the Holder delivers to the Company the Warrant and an
executed Notice of Exercise in the form attached hereto. If the Common Stock is not quoted on the
NASDAQ National Market, or listed on another national exchange, the fair market value of one share
of Common Stock shall be determined by the Company’s Board of Directors in good faith.




          2.3 Legend.




          (a) All certificates evidencing the shares to be issued to the Holder may bear the following
legends:




          “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE, AND THE SAME HAVE BEEN ISSUED IN



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 3









 







RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. SUCH
SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS
PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.”




          “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS
SET FORTH IN THE WARRANT PURCHASE AGREEMENT, DATED AS OF April 18, 2006, COPIES OF WHICH ARE ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THESE SHARES
WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED
WITH.”




               (b) If the certificates representing shares include either or both of the legends set forth
in Section 2.3(a) hereof, the Company shall, upon a request from a Holder, or subsequent
transferee of a Holder, as soon as practicable but in no event more than thirty (30) days after
receiving such request, remove or cause to be removed (i) if the shares cease to be restricted
securities, the securities law portion of the legend and/or (ii) in the event of a sale of the
shares subject to issuance following the transfer of the shares in compliance with the transfer
restrictions, the transfer restriction portion of the legend, from certificates representing the
shares delivered by a Holder (or a subsequent transferee).



          2.4 Charges, Taxes and Expenses. Issuance of the Exercise Shares shall be made without charge
to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance
of any electronic or paper certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the Holder or in such name or names
as may be directed by the Holder; provided, however, that in the event Exercise
Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered
for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the
Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.




     3. Covenants of the Company.



          3.1 No Impairment. Except and to the extent as waived or consented to by the Holder, the
Company shall at all times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate in order to protect
the exercise rights of the Holder against impairment.




          3.2 Notices of Record Date. If at any time:





          (a) the Company shall take a record of the holders of Common Stock for the purpose of
entitling them to receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right (other than with


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 4









 







respect to any equity or equity equivalent security issued pursuant to a rights plan
adopted by the Company’s Board of Directors);





(b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the
Company, or any sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company; or




(c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company;


then, in any one or more of such cases, the Company shall give to Holder at least ten (10) days’
prior written notice of the record date for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification, recapitalization,
consolidation, merger, sale, transfer, disposition, dissolution, liquidation or winding up of the
Company. Any notice provided hereunder shall specify the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the amount and character
thereof, and the then current estimated date for the closing of the transaction contemplated by any
proposed reorganization, reclassification, recapitalization, consolidation, merger, sale, transfer,
disposition, dissolution, liquidation or winding up of the Company.




     4. Adjustment of Exercise Price. 



          4.1 Changes in Common Stock In the event of changes in the outstanding Common Stock by
reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or
exchanges of shares, separations, reorganizations, liquidations or the like, the number and class
of shares available under this Warrant in the aggregate and the Exercise Price shall be
correspondingly adjusted to give the Holder of this Warrant, on exercise for the same aggregate
Exercise Price, the total number, class and kind of shares as the Holder would have owned had the
Warrant been exercised prior to the event and had the Holder continued to hold such shares until
after the event requiring adjustment. The form of this Warrant need not be changed because of any
adjustment in the number of Exercise Shares subject to this Warrant pursuant to this Section 4.1.




          4.2 Related Oncology Products Agreement; No Exercise of Purchase Option. In accordance with
Section 2.01 of the Warrant Purchase Agreement, in the event that either: (a) [ * ]; or (b) the
Purchase Option expires unexercised or is terminated in accordance with Section 2.04(i) of the
Warrant Purchase Agreement, then the Exercise Price for Exercise Shares pursuant to this Warrant
shall be automatically reduced to a price of $5.86, subject to adjustment pursuant to Section 4.1.




     5. Fractional Shares. No fractional shares shall be issued upon the exercise of this
Warrant, including as a consequence of any adjustment pursuant hereto. If the exercise would
result in the issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum in cash equal to the


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 5









 







product resulting from multiplying the fair market value of an Exercise Share (determined as
provided in Section 2.2 hereof) by such fraction.




     6. Corporate Transactions. In the event that the Company enters into a merger or
acquisition in which the surviving or “resulting” parent entity (“Surviving Entity”) is other than
the Company, then the Holder shall surrender the Warrant for a new warrant exercisable in return
for shares or common stock of the Surviving Entity (as defined in the Warrant Purchase Agreement)
(the “Replacement Warrant”); provided that:



          6.1 Mixed Consideration. In accordance with Section 7.08 of the Warrant Purchase Agreement,
if the consideration for a merger or acquisition consists of a combination of cash and stock of the
Surviving Entity, then the Replacement Warrant issued to Holder shall be solely for common stock of
the Surviving Entity at an exchange ratio reflecting the total consideration paid by the Surviving
Entity at the time of such change in control as if the total consideration (including cash) for
each share of the Common Stock was instead paid only in common stock of the Surviving Entity at the
time of such change of control (as illustrated on Exhibit C to the Warrant Purchase Agreement), and
the holders of the Replacement Warrants shall have the registration rights for stock issuable upon
exercise of the Replacement Warrants as provided under the Registration Rights Agreement; or




          6.2 Cash Consideration. In accordance with Section 7.08 of the Warrant Purchase Agreement, if
prior to the end of the Term (as defined in the Warrant Purchase Agreement), a merger or
acquisition shall occur and the consideration for such merger or acquisition shall be paid entirely
in cash, then the Holder of this Warrant shall then have the option to irrevocably elect within
fifteen (15) Business Days of the public announcement of the merger or acquisition by written
notice of election to the Company, either (a) to retain the Warrant and the right to exercise the
Warrant then outstanding for Exercise Shares in accordance with the terms of this Warrant, which
exercise shall occur no later than immediately prior to the closing of such merger or acquisition;
or (b) to surrender the Warrant to the Company in consideration of a cash payment for each share of
the Common Stock subject to purchase under this Warrant in an amount equal to [ * ] (the “Warrant
Surrender Price”). The Warrant Surrender Price shall be paid upon the surrender of the Warrants
promptly following the closing of the all cash merger or acquisition. Any failure by the Holder to
deliver a written notice of election to the Company pursuant to this Section 6.2 shall be deemed an
election of Section 6.2(a) hereunder.



Following a merger or acquisition involving consideration of cash and stock in which the Surviving
Entity is other than the Company, reference to Common Stock shall instead be deemed a reference to
the common stock of the Surviving Entity. For purposes of Section 6.1, “common stock of the
Surviving Entity” shall include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the occurrence of a specified event and any warrants or
other rights to subscribe for or purchase any such stock. The foregoing provisions of



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement





B - 6









 







this Section 6 shall similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.




     7. Notice of Adjustment. Whenever the number of Exercise Shares or number or kind of
securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give notice thereof to the Holder at the address of
such Holder appearing on the books of the Company, which notice shall state the number of Exercise
Shares (and other securities or property) purchasable upon the exercise of this Warrant and the
Exercise Price of such Exercise Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.



     8. Orderly Sale. This Warrant and the Exercise Shares are subject to the provisions
of Section 6.05 of the Warrant Purchase Agreement.



     9. No Stockholder Rights. This Warrant does not entitle the Holder to any voting
rights or other rights as a stockholder of the Company prior to the exercise hereof. Upon the
exercise of this Warrant in accordance with Section 2, the Exercise Shares so purchased shall be
and be deemed to be issued to such Holder as the record owner of such shares as of the close of
business on the date of such exercise.



     10. Transfer of Warrant. Subject to applicable laws, the restriction on transfer set
forth on the first page of this Warrant and the provisions of Article VI of the Warrant Purchase
Agreement, this Warrant and all rights hereunder are transferable by the Holder, in person or by
duly authorized attorney, upon delivery of this Warrant, the Assignment Form attached hereto and
funds sufficient to pay any transfer taxes payable upon the making of such transfer, to any
transferee designated by Holder. Upon such surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in
the denomination or denominations specified in such instrument of assignment, and shall issue to
the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by a new holder for
the purchase of Exercise Shares without having a new Warrant issued. The Company may require, as
a condition of allowing a transfer (i) that the Holder or transferee of this Warrant, as the case
may be, furnish to the Company a written opinion of counsel (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable transactions) to the effect
that such transfer may be made without registration under the Securities Act and under applicable
state securities or blue sky laws, (ii) that the holder or transferee execute and deliver to the
Company an investment letter in form and substance acceptable to the Company, (iii) that the
transferee be an “accredited investor” as defined in Rule 501(a) promulgated under the Securities
Act and (iv) the transferee agree in writing to be bound by the terms of this Warrant and the
Warrant Purchase Agreement as if an original signatory thereto.



     11. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 7









 







thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.




     12. Notices, etc. Any notice, request, demand, waiver, consent, approval or other
communication that is required or permitted to be given hereto shall be in writing and shall be
deemed given only if delivered to the applicable party personally or sent to the party by facsimile
transmission (promptly followed by a hard-copy delivered in accordance with this Section 12), by
next business day delivery by a nationally recognized courier service, or by registered or
certified mail (return receipt requested), with postage and registration or certification fees
thereon prepaid, addressed to the party at its address set forth in the Warrant Purchase Agreement,
or at such other address as the Company or Holder may designate by ten (10) days advance written
notice to the other party hereto.



     13. Acceptance. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



     14. Governing Law. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of New York.



     15. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking
of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday
or a legal holiday, then such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.



     16. Amendment. This Warrant may be modified or amended or the provisions hereof
waived with the written consent of the Company and the Holder.



     17. Successors and Assigns. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of Holder.



     18. Headings. The headings used in this Warrant are for the convenience of reference
only and shall not, for any purpose, be deemed a part of this Warrant.


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement





B - 8









 








          In Witness Whereof, the Company has caused this Warrant to be executed by its duly
authorized officer as of April 18, 2006.




	 	 	 	 	 	 	 
	 	 	DYNAVAX TECHNOLOGIES CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 9









 








NOTICE OF EXERCISE





			
	TO: 	 	DYNAVAX TECHNOLOGIES CORPORATION






			
	ATTN: 	 	Chief Financial Officer





          (1)
The undersigned hereby elects to purchase                      shares of Common Stock of Dynavax
Technologies Corporation (the “Company”) pursuant to the terms of the attached Warrant dated [DATE OF ISSUE], as follows:




                              
shares pursuant to the terms of the cashless exercise provisions set forth in Section
2.2, and shall tender payment of all applicable transfer taxes, if any.




          (2) Please issue said shares of Common Stock in the name of the undersigned or in such other
name as is specified below:




 





(Name)




 



 





(Address)





(iii)
   (3) The undersigned represents that:




          (A) It is an “accredited investor” within the meaning of Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities Act”).




          (B) It has relied completely on the advice of, or has consulted with or has had
the opportunity to consult with, its own personal tax, investment, legal or other
advisors and has not relied on the Company or any of its affiliates for advice.




          (C) It has been advised and understands that the offer and sale of the attached
Warrant and the shares of Common Stock issued upon exercise of the Warrant (the
“Warrant Shares”) have not been registered under the Securities Act. It is able to
bear the economic risk of such investment for an indefinite period and to afford a
complete loss thereof.




          (D) It is acquiring the Warrant Shares solely for its own account for
investment purposes as a principal and not with a view to the resale of all or any
part thereof. It agrees that the Warrant Shares may not be resold (1) without
registration thereof under the Securities Act (unless an exemption from such
registration is available), or (2) in violation of any law. It acknowledges that
the Company is not required to register the Warrant Shares under the Securities Act.
It is not and will not be an underwriter within the meaning of Section 2(11) of the
Securities Act with respect to the Warrant Shares.


[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement




B - 10









 









          (E) No person or entity acting on behalf of, or under the authority of, the
undersigned is or will be entitled to any broker’s, finder’s, or similar fees or
commission payable by the Company or any of its affiliates.



	 	 	 	 	 	 	 
	 

(Date)

	 	 
	 	 

(Signature)	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	(Print name)	 	 





[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement





B - 11









 








ASSIGNMENT FORM





(To assign the foregoing Warrant, execute this form
and supply required information. Do not use this
form to purchase shares.)



          For Value Received, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to




	 	 	 	 	 
	Name:
	 	 	 	 
	 	 	 
	 

	 	(Please Print)
	 
	 	 	 	 
	Address:
	 	 	 	 
	 	 	 
	 

	 	(Please Print)
	 
	 	 	 	 
	Dated:

	 	                    , 2___	 	 
	 
	 	 	 	 
	Holder’s
	 	 	 	 
	Signature:
	 	 	 	 
	 

	 	 

	 	 
	Holder’s
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 

	 	 






NOTE: The signature to this Assignment Form must correspond with the name as it appears on the

face of the Warrant, without alteration or enlargement or any change whatever. Officers of

corporations and those acting in a fiduciary or other representative capacity should file proper

evidence of authority to assign the foregoing Warrant.



[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Exhibit B to the 
 Warrant Purchase Agreement





B - 12









 








EXHIBIT C




WARRANT CONVERSION EXAMPLE




          In the event that Dynavax is the target of a merger or acquisition in which the share purchase
price paid by the acquiror is paid in a mixture of cash and stock, each outstanding Warrant is to
be exchanged for a Replacement Warrant of the Surviving Entity such that the holders of such
Warrant shall receive an additional Replacement Warrant in lieu of the cash portion of the share
purchase price, as set out in the following example:





	 	•	 	A holder hereunder holds a Warrant exercisable for 100,000 shares of Dynavax Common
Stock at an exercise price of $8.00, and the share purchase price paid by the acquiror is
$10.00 per share of Dynavax Common Stock, with $3.00 to be paid in cash and $7.00 to be
paid in shares of the common stock of the Surviving Entity (“New Stock”), based on a price
of $70.00 per share of New Stock.
	 
	 	•	 	The Warrant of such holder, exercisable for 100,000 shares of Dynavax Common Stock,
shall be converted as follows:






	 	(1)	 	The New Stock portion of the purchase price ($7.00 / share, or a ratio of New
Stock to Dynavax Common Stock of 10 to 1) shall yield a Replacement Warrant exercisable
for 10,000 shares of New Stock; and
	 
	 	(2)	 	The cash portion of the purchase price ($3.00 / share, or $300,000 total)
shall, at the New Stock price of $70 /share, yield a Replacement Warrant exercisable
for 4,286 shares of New Stock ($300,000 / $70).






	 	•	 	Therefore, in such a scenario, a holder of a Warrant exercisable for 100,000 shares of
Dynavax Common Stock would receive Replacement Warrants exercisable for an aggregate total
of 14,286 shares of New Stock at an exercise price of $56.00 per share.




[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.