exv10w2



 





EXECUTION VERSION




 






Registration Rights Agreement




Dated as of June 11, 2007




among




Dendreon Corporation




and




Merrill Lynch, Pierce, Fenner & Smith

Incorporated




 






 









 





REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this 11th day of
June, 2007, among Dendreon Corporation, a Delaware corporation (the “Company”), and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the “Initial Purchaser”).




          This Agreement is made pursuant to the Purchase Agreement, dated as of June 5, 2007, among the
Company and the Initial Purchaser (the “Purchase Agreement”), which provides for the sale by the
Company to the Initial Purchaser of $75,000,000 aggregate principal amount ($100,000,000 principal
amount if the Initial Purchaser exercises its option in full) of the Company’s 4.75% Convertible
Senior Subordinated Notes due 2014 (the “Securities”). In order to induce the Initial Purchaser to
enter into the Purchase Agreement, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution of this Agreement is a condition to the closing under the
Purchase Agreement.




          In consideration of the foregoing, the parties hereto agree as follows:




          1. Definitions.




          As used in this Agreement, the following capitalized defined terms shall have the following
meanings:




          “1933 Act” shall mean the Securities Act of 1933, as amended from time to time.




          “1934 Act” shall mean the Securities Exchange Act of l934, as amended from time to time.




          “1939 Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.




          “Closing Date” shall mean the First Delivery Date as such term is defined in the Purchase
Agreement.




          “Common Stock” shall mean any shares of common stock, $0.001 par value, of the Company and any
other shares of common stock as may constitute “Common Stock” for purposes of the Indenture.




          “Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.




          “Depositary” shall mean The Depository Trust Company, or any other depositary appointed by the
Company, provided, however, that such depositary must have an address in the Borough of Manhattan,
in the City of New York.




          “Holder” shall mean the Initial Purchaser, for so long as it owns any Registrable Securities,
and each of its successors, assigns and direct and indirect transferees who become registered
owners of Registrable Securities under the Indenture.




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          “Indenture” shall mean the Indenture relating to the Securities, dated as of the date hereof,
between the Company and The Bank of New York Trust Company, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with the terms thereof.




          “Initial Purchaser” shall have the meaning set forth in the preamble.




          “Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that, for purposes of this definition, a
Holder of shares of Common Stock which constitute Registrable Securities and issued upon conversion
of the Securities shall be deemed to hold an aggregate principal amount of Registrable Securities
(in addition to the principal amount of other Securities held by such Holder) equal to the product
of (x) the number of such shares of Common Stock held by such Holder and (y) the conversion rate in
effect at the time of such conversion determined in accordance with the Indenture; provided
further that Registrable Securities held by the Company or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage amount.




          “Option Closing Date” shall mean the Optional Delivery Date, as such term is defined in the
Purchase Agreement, or if the Initial Purchaser does not exercise its option to purchase additional
Securities pursuant to the terms of the Purchase Agreement, “Option Closing Date” shall mean the
Closing Date.




          “Person” shall mean an individual, partnership (general or limited), corporation, limited
liability company, trust or unincorporated organization, or a government or agency or political
subdivision thereof.




          “Prospectus” shall mean the prospectus included in a Shelf Registration Statement, including
any preliminary prospectus, any “issuer-free writing prospectus,” as such term is defined in Rule
433 under the 1933 Act, and any such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement or free writing prospectus with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus or free writing prospectus,
including post-effective amendments, and in each case including all material incorporated by
reference therein.




          “Purchase Agreement” shall have the meaning set forth in the preamble.




          “Registrable Securities” shall mean all or any of the Securities issued from time to time
under the Indenture in registered form, and the shares of Common Stock issuable upon conversion of
such Securities; provided, however, that any such Securities shall cease to be Registrable
Securities when (i) a Shelf Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to
such Shelf Registration Statement, (ii) such Securities have been or may be sold or transferred to
the public pursuant to Rule l44 (or any similar provision then in force, including Rule 144(k) but
not Rule 144A) under the 1933 Act, or (iii) such Securities shall have ceased to be outstanding.




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          “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the “NASD”) registration and filing
fees, including, if applicable, the fees and expenses of any “qualified independent underwriter”
(and its counsel) that is required to be retained by any holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Registrable Securities and any filings with
the NASD), (iii) all expenses of the Company in preparing or assisting in preparing, word
processing, printing and distributing any Shelf Registration Statement, any Prospectus, any
amendments or supplements thereto, any securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and disbursements of counsel for
the Company and of the independent public accountants of the Company, including the expenses of any
special audits or “comfort” letters required by or incident to such performance and compliance,
(vii) the reasonable fees and expenses of the Trustee, and any escrow agent or custodian and (viii)
any fees and expenses of any special experts retained by the Company in connection with any Shelf
Registration Statement, but excluding any underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.




          “SEC” shall mean the Securities and Exchange Commission or any successor agency or government
body performing the functions currently performed by the United States Securities and Exchange
Commission.




          “Shelf Registration” shall mean a registration effected pursuant to Section 2.1 hereof.




          “Shelf Registration Statement” shall mean a “shelf” registration statement of the Company
pursuant to the provisions of Section 2.2 of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.




          “Trustee” shall mean the trustee with respect to the Securities under the Indenture.




          2. Registration Under the 1933 Act.





     2.1 Shelf Registration.




     (a) The Company shall, at its cost, not later than 90 days after the
Closing Date, file the Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders that have provided



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the information pursuant to Section 2.1(d) with the SEC, and thereafter
shall use its commercially reasonable efforts to cause such Shelf
Registration Statement to become effective as promptly as is practicable,
but in no event later than 180 days after the Closing Date; provided,
however, that the Company may, upon written notice to all Holders, defer the
filing or the effectiveness of the Shelf Registration Statement for a
reasonable period not to exceed 90 days if the Company is engaged in
non-public negotiations or other non-public business activities, disclosure
of which would be required in such Shelf Registration Statement (but would
not be required if such Shelf Registration Statement were not filed), and
the Company’s Board of Directors or a duly authorized committee thereof
determines in good faith that such disclosure would have a material adverse
effect on the Company and its subsidiaries taken as a whole.




     (b) The Company shall, at its cost, use its commercially reasonable
efforts, subject to Section 2.5, to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders until the earliest of (1) the sale pursuant
to the Shelf Registration Statement of the Registrable Securities, (2) the
date when the Holders, other than holders that are Affiliates, are able to
sell all such Registrable Securities immediately without restriction
pursuant to the volume limitation provisions of Rule 144 (or any similar
provision then in force, including Rule 144(k) but not Rule 144A) under the
1933 Act or otherwise and (3) the date that is two years from the Option
Closing Date (the “Effectiveness Period”).




     (c) Notwithstanding any other provisions hereof, the Company shall use
its commercially reasonable efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any supplement thereto complies in all material respects
with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.




     (d) Notwithstanding any other provision hereof, no Holder of
Registrable Securities may include any of its Registrable Securities in the
Shelf Registration Statement pursuant to this Agreement unless the Holder
furnishes to the Company a fully completed notice and questionnaire in the
form attached as Annex A to the Offering Memorandum (the



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“Questionnaire”) and such other information in writing as the Company
may reasonably request in writing for use in connection with the Shelf
Registration Statement or Prospectus included therein and in any application
to be filed with or under state securities laws. In order to be named as a
selling securityholder in the Prospectus at the time of effectiveness of the
Shelf Registration Statement, each Holder must, before the effectiveness of
the Shelf Registration Statement and no later than the 20th day after the
issuance of a press release by the Company announcing the initial filing of
the Shelf Registration Statement (or the filing of the first amendment to
the Shelf Registration Statement in the event the Company promptly files the
Shelf Registration Statement following the date of this Agreement), furnish
the completed Questionnaire and such other information that the Company may
reasonably request in writing, if any, to the Company in writing and the
Company will include the information from the completed Questionnaire and
such other information, if any, in the Shelf Registration Statement and the
Prospectus in a manner so that upon effectiveness of the Shelf Registration
Statement the Holder will be permitted to deliver the Prospectus to
purchasers of the Holder’s Registrable Securities. From and after the date
that the Shelf Registration Statement is first declared effective by the
SEC, upon receipt of a completed Questionnaire and such other information
that the Company may reasonably request in writing, if any, the Company will
use its commercially reasonable efforts to file within 20 business days any
amendments or supplements to the Shelf Registration Statement necessary for
such Holder to be named as a selling securityholder in the Prospectus
contained therein to permit such Holder to deliver the Prospectus to
purchasers of the Holder’s Securities (subject to the Company’s right to
suspend the Shelf Registration Statement as described in Section 2.5 below);
provided, however, that the Company shall not be required to file more than
one post-effective amendment to the Shelf Registration Statement in any
calendar quarter for all such Holders. Holders that do not deliver a
completed written Questionnaire and such other information, as provided for
in this Section 2.1(d), will not be named as selling securityholders in the
Prospectus. Each Holder named as a selling securityholder in the Prospectus
agrees to promptly furnish to the Company all information required to be
disclosed in order to make information previously furnished to the Company
by the Holder not materially misleading and any other information regarding
such Holder and the distribution of such Holder’s Registrable Securities as
the Company may from time to time reasonably request in writing.




     (e) Each Holder agrees not to sell any Registrable Securities pursuant
to the Shelf Registration Statement without delivering, or causing to be
delivered, a Prospectus to the purchaser thereof and, following termination
of the Effectiveness Period, to notify the Company, within ten days of a
written request by the Company, of the amount of Registrable Securities sold
pursuant to the Shelf Registration Statement and, in the



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absence of a response, the Company may assume that all of such Holder’s
Registrable Securities have been so sold; provided that the Company shall
use commercially reasonable efforts to confirm that all of such Holder’s
Registrable Securities have been so sold prior to making such assumption.



          The Company shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration Statement. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment promptly after its
being used or filed with the SEC.




               2.2 Expenses. The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.



               2.3 Effectiveness.




     (a) The Company will be deemed not to have used commercially reasonable
efforts to cause the Shelf Registration Statement to become, or to remain,
effective during the requisite period if the Company voluntarily takes any
action that would, or omits to take any action which omission would, result
in any such Shelf Registration Statement not being declared effective or in
the Holders of Registrable Securities covered thereby not being able to
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable
law.




     (b) A Shelf Registration Statement pursuant to Section 2.1 hereof will
not be deemed to have become effective unless it has been declared effective
by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have become
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may
legally resume.



               2.4 Interest. In the event that (a) the Shelf Registration Statement has not been
filed with the SEC within 90 days after the Closing Date, (b) the Shelf Registration Statement has
not become effective within 180 days after the Closing Date, (c) the Shelf Registration Statement
shall cease to be effective or fail to be usable, subject to Section 2.5, without being succeeded
within seven business days by a post-effective amendment or a report filed with the SEC pursuant to
the 1934 Act that cures the failure of the Shelf Registration Statement to be effective or usable,
or (d) the use of the Prospectus has been suspended pursuant to Section 2.5 longer than the period
permitted by Section 2.5 (each such event being a




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“Registration Default”), additional interest, as liquidated damages (“Liquidated Damages”),
will accrue at a rate per annum of one-quarter of one percent (0.25%) of the principal amount of
the Securities for the first 90-day period following the Registration Default, and thereafter at a
rate per annum of one-half of one percent (0.50%) of the principal amount of the Securities,
provided that in no event shall Liquidated Damages accrue at a rate per annum exceeding one half of
one percent (0.50%) of the principal amount of the Securities, provided further that no Liquidated
Damages shall accrue after the second anniversary of the date of the latest issuance of Securities,
provided further that Liquidated Damages shall not accrue under clause (c) and (d) above with
respect to any Holder that (x) does not submit a properly completed Questionnaire, and (y) is not
named as a Selling Holder in the Shelf Registration Statement; and provided further that no
Liquidated Damages shall accrue under clause (a) or (b) above if, pursuant to Section 2.1(a)
hereof, the Company defers the filing or effectiveness of the Shelf Registration Statement, for a
reasonable period not to exceed 90 days if the Company is engaged in non-public negotiations or
other non-public business activities, disclosure of which would be required in such Shelf
Registration Statement (but would not be required if such Shelf Registration Statement were not
filed), and the Board of Directors of the Company or a duly authorized committee thereof determines
in good faith that such disclosure would have a material adverse effect on the Company and its
subsidiaries taken as a whole. Upon the cure of all Registration Defaults then continuing, the
accrual of Liquidated Damages will automatically cease and the interest rate borne by the
Securities will revert to the original interest rate at such time. Liquidated Damages shall be
computed based on the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is not effective or is unusable. Holders who have converted Securities into
Common Stock will not be entitled to receive any Liquidated Damages with respect to such Common
Stock or the issue price of the Securities converted.




          The Company shall notify the Trustee within three business days after each and every date on
which an event occurs in respect of which Liquidated Damages are required to be paid. Liquidated
Damages shall be paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Liquidated Damages then due. The Liquidated Damages
due shall be payable on each interest payment date to the record Holder of Registrable Securities
entitled to receive the interest payment to be paid on such date as set forth in the Indenture.
Each obligation to pay Liquidated Damages shall be deemed to accrue from and including the day
following the Registration Default to but excluding the day on which the Registration Default is
cured.




          A Registration Default under clause (a) above shall be cured on the date that the Shelf
Registration Statement is filed with the SEC. A Registration Default under clause (b) above shall
be cured on the date that the Shelf Registration Statement is declared effective by the SEC. A
Registration Default under clauses (c) or (d) above shall be cured on the date an amended Shelf
Registration Statement is declared effective by the SEC or the Company otherwise declares the Shelf
Registration Statement and the Prospectus useable, as applicable. The Company will have no
liabilities for monetary damages with respect to any Registration Default for which Liquidated
Damages are expressly provided for herein.




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          2.5 Suspension. The Company may suspend the use of any Prospectus, without incurring
or accruing any obligation to pay Liquidated Damages pursuant to Section 2.4 hereof, for a period
not to exceed 60 calendar days in any 90-day period, or an aggregate of 120 calendar days in any
twelve-month period, (each, a “Suspension Period”) if the Board of Directors of the Company shall
have determined in good faith that because of valid business reasons (not including avoidance of
the Company’s obligations hereunder), including without limitation proposed or pending corporate
developments and similar events or because of filings with the SEC, it is in the best interests of
the Company to suspend such use, and prior to suspending such use the Company provides the Holders
with written notice of such suspension, which notice need not specify the nature of the event
giving rise to such suspension. Each Holder shall keep confidential any communications received by
it from the Company regarding the suspension of the use of the Prospectus, except as required by
applicable law.




          3. Registration Procedures.




          In connection with the obligations of the Company with respect to the Shelf Registration, the
Company shall:





     (a) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period specified in Section 2, on the appropriate
form under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall be available for the sale of the Registrable Securities by the
selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply
in all respects with the applicable requirements of Regulation S-T under the
1933 Act, if any, and use commercially reasonable efforts to cause such
Shelf Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;




     (b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary under
applicable law to keep the Shelf Registration Statement effective for the
Effectiveness Period, subject to Section 2.5; and cause each Prospectus to
be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then
in force) under the 1933 Act and comply during the Effectiveness Period with
the provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder required to enable the disposition of all Registrable Securities
covered by the Shelf Registration Statement in accordance with the intended
method or methods of distribution by the selling Holders thereof;




     (c) (i) notify each Holder of Registrable Securities of the filing, by
issuing a press release, of a Shelf Registration Statement with respect to
the Registrable Securities; (ii) furnish to each Holder of Registrable



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Securities that has provided the information required by Section 2.1(d)
and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the unrestricted
sale or other disposition of the Registrable Securities; and (iii) subject
to Section 2.5 hereof and to any notice by the Company in accordance with
Section 3(e) hereof of the existence of any fact of the kind described in
Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities that has provided the information
required by Section 2.1(d) in connection with the offering and sale of the
Registrable Securities;




     (d) use commercially reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or “blue sky”
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Shelf Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request, and do any and
all other acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i) qualify as
a foreign corporation or as a dealer in securities in any jurisdiction where
it would not otherwise be required to qualify but for this Section 3(d), or
(ii) take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;




     (e) notify promptly each Holder of Registrable Securities under a Shelf
Registration that has provided the information required by Section 2.1(d)
and, if requested by such Holder, confirm such advice in writing promptly
(i) when a Shelf Registration Statement has become effective and when any
post-effective amendments thereto become effective, (ii) of any request by
the SEC or any state securities authority for post-effective amendments and
supplements to a Shelf Registration Statement and Prospectus or for
additional information after the Shelf Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the happening of any event or the discovery of any facts
during the period a Shelf Registration Statement is effective which makes
any statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Shelf Registration



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Statement or Prospectus in order to make the statements therein not
misleading, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vi) of any determination by the Company
that a post-effective amendment to such Shelf Registration Statement would
be appropriate;




     (f) furnish to the Initial Purchaser on behalf of the Holders and to
special counsel to the Initial Purchaser copies of (i) any comment letters
received from the SEC with respect to a Shelf Registration Statement or,
after the initial filing of a Shelf Registration Statement and prior to its
effectiveness, any documents incorporated therein and (ii) any other request
by the SEC or any state securities authority for amendments or supplements
to a Shelf Registration Statement and Prospectus or for additional
information with respect to the Shelf Registration Statement and Prospectus;




     (g) use commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Shelf Registration Statement at the
earliest possible moment;




     (h) furnish to each Holder of Registrable Securities that has provided
the information required by Section 2.1(d), and each underwriter, if any,
without charge, at least one conformed copy of each Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by
reference and all exhibits thereto, unless requested);




     (i) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
(other than as required by the Company’s certificate of incorporation or
bylaws or applicable law); and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any,
may reasonably request at least three business days prior to the closing of
any sale of Registrable Securities;




     (j) upon the occurrence of any event or the discovery of any facts,
each as contemplated by Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof,
as promptly as practicable after the occurrence of such an event, use
commercially reasonable efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the



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purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
or will remain so qualified. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact or to
include any omitted material fact, the Company agrees promptly to notify
each Holder that has provided the information required by Section 2.1(d) of
such determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably
request;




     (k) no less than three business days prior to the filing of any Shelf
Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus (other
than amendments and supplements that do nothing more than name Holders and
provide information with respect thereto), provide copies of such document
to the Initial Purchaser on behalf of such Holders (excluding any document
incorporated by reference into such Shelf Registration Statement,
Prospectus, amendment to the Shelf Registration Statement or amendment or
supplement to the Prospectus which is available at such time through the
SEC’s EDGAR system or any public website maintained by the SEC or the
Company), and make representatives of the Company, as shall be reasonably
requested by the Holders of Registrable Securities or the Initial Purchaser
on behalf of such Holders, available for discussion of such document,
including any document incorporated by reference therein;




     (l) provide the Trustee with printed certificates for the Registrable
Securities in a form eligible for deposit with the Depositary;




     (m) (i) cause the Indenture to be qualified under the 1939 Act in
connection with the registration of the Registrable Securities, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the 1939 Act, and (iii) execute, and use
commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;




     (n) enter into such customary agreements and take all other customary
and appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities, including, but not limited to:



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     (i) obtain opinions of counsel to the Company and updates
thereof addressed to each selling Holder and the underwriters, if
any, covering the matters set forth in the opinions of such counsel
delivered to the Initial Purchaser at the Closing Date;




     (ii) obtain “comfort” letters and updates thereof from the
Company’s independent certified public accountants (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements are, or are required to be, included
in the Shelf Registration Statement) addressed to the underwriters,
if any, and use commercially reasonable efforts to have such letter
addressed to the selling Holders of Registrable Securities (to the
extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accounts), such letters
substantially in the form and covering the matters covered in the
comfort letter delivered to the Initial Purchaser on the Closing
Date;




     (iii) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to said
Section or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and




     (iv) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if
any.


The above shall be done only in connection with any underwritten offering of Registrable Securities
using such Shelf Registration Statement pursuant to an underwriting or similar agreement as and to
the extent required thereunder, and as reasonably requested by any of the parties thereto;
provided, however, that in no event will an underwritten offering of Registrable Securities be made
without the prior written agreement of the Company;





     (o) if reasonably requested in connection with a disposition of
Registrable Securities, make available for inspection during business hours
by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by any of the
foregoing, all financial and other records, pertinent corporate



13









 







documents and properties of the Company reasonably requested by any
such persons, and cause the respective officers, directors, employees, and
any other agents of the Company to supply all information reasonably
requested by any such representative, underwriter, special counsel or
accountant in connection with a Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchaser, in each case as is
customary for “due diligence” investigations; provided that, to the extent
the Company, in its reasonable discretion, agrees to disclose material
non-public information, such persons shall first agree in writing with the
Company that any such non-public information shall be kept confidential by
such persons and shall be used solely for the purposes of exercising rights
under this Agreement and such person shall not engage in trading any
securities of the Company until such material non-public information becomes
properly publicly available, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Shelf Registration
Statement or the use of any Prospectus referred to in this Agreement upon a
customary opinion of counsel for such persons delivered and reasonably
satisfactory to the Company), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person, (iv) such information becomes available to any
such person from a source other than the Company and such source is not
bound by a confidentiality agreement, or (v) such non-public information
ceases to be material; and provided further, that the foregoing inspection
and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Holders and the other parties entitled
thereto by special counsel to the Holders;


The above shall be done only in connection with any underwritten offering of Registrable Securities
using such Shelf Registration Statement pursuant to an underwriting or similar agreement as and to
the extent required thereunder, and as reasonably requested by any of the parties thereto;
provided, however, that in no event will an underwritten offering of Registrable Securities be made
without the prior written agreement of the Company;





     (p) a reasonable time prior to filing the Shelf Registration Statement,
any Prospectus forming a part thereof, any amendment to the Shelf
Registration Statement or amendment or supplement to such Prospectus (other
than (i) amendments and supplements that do nothing more than name Holders
and provide information with respect thereto and (ii) periodic and current
reports and proxy and information statements the Company is required to file
with the SEC pursuant to the 1934 Act), furnish to the Initial Purchaser and
its special counsel copies of all such documents proposed to be filed and
use its commercially reasonable



14









 







efforts to reflect in each such document when so filed with the SEC
such comments as the Initial Purchaser and such special counsel reasonably
shall propose within three (3) Business Days of the delivery of such copies
to the Initial Purchaser and its special counsel. In addition, if any
Holder shall so request in writing, a reasonable time prior to filing any
such documents, the Company shall furnish to such Holder copies of all such
documents proposed to be filed and use its reasonable efforts to reflect in
each such document when so filed with the SEC such comments as such Holder
reasonably shall propose within three (3) Business Days of the delivery of
such copies to such Holder;




     (q) use its commercially reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange or inter-dealer quotation
system on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;




     (r) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and




     (s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including any “qualified independent
underwriter” that is required to be retained in accordance with the rules
and regulations of the NASD).



          Without limiting the provisions of Section 2.1(d), the Company may (as a condition to such
Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time reasonably request in
writing.




          Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section 3(e)(ii), (iii), (iv),
(v) and (vi) hereof, such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Prospectus included in the Shelf Registration Statement until such Holder’s receipt
of the copies of the supplemented or amended Prospectus contemplated by Section 3(j) hereof or
written notice from the Company that the Shelf Registration Statement is again effective and no
amendment or supplement is needed, and, if so directed by the Company, such Holder will deliver to
the Company (at its expense) all copies in such Holder’s possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.




15









 








          In the event that a Registration Default has occurred and is continuing, the Company shall not
file any Shelf Registration Statement with respect to any securities (within the meaning of Section
2(1) of the 1933 Act) of the Company other than Registrable Securities.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements.




          4. Indemnification; Contribution.





     (a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, each Holder who has provided information to the Company in
accordance with Section 2.1(d) hereof, each Person who participates as an
underwriter (any such Person being an “Underwriter”) and each Person, if
any, who controls any Holder or Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:




     (i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;




     (ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or



16









 







omission; provided that (subject to Section 4(d) below) any
such settlement is effected with the written consent of the Company;
and




     (iii) against any and all reasonable out-of-pocket expenses
whatsoever, as incurred (including the reasonable fees and
disbursements of counsel chosen by any indemnified party), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Holder or underwriter expressly for use in a Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto);
provided, further, that this indemnity provision shall not apply to any loss, liability, claim,
damage or expense if the Holder fails to deliver at or prior to the written confirmation of sale
the most recent Prospectus furnished to such Holder by the Company and such Prospectus, as amended
or supplemented as of the time of such confirmation of sale, including any amendment or supplement
filed with the SEC that is incorporated by reference in the Prospectus, would have corrected such
untrue statement or omission or alleged untrue statement or omission of a material fact and
delivery thereof was required by law.





     (b) Each Holder who has provided information to the Company in
accordance with Section 2.1(d) hereof, severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchaser, each
Underwriter and the other selling Holders who have provided information to
the Company in accordance with Section 2.1(d) hereof, and each of their
respective directors and officers, and each Person, if any, who controls the
Company, the Initial Purchaser, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 4(a) hereof, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by or on
behalf of such Holder expressly for use in the Shelf Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be liable
for any claims hereunder in



17









 







excess of the amount of net proceeds received by such Holder from the
sale of Registrable Securities pursuant to such Shelf Registration
Statement.




     (c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.




     (d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.




     (e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified



18









 







party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, in such proportion
as is appropriate to reflect the relative fault of the Company on the one
hand and the Holders and the Initial Purchaser on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.



          The relative fault of the Company on the one hand and the Holders and the Initial Purchaser on
the other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, or by the Holders or the Initial Purchaser and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.




          The Company, the Holders and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 4 shall be deemed
to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.




          Notwithstanding the provisions of this Section 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




          For purposes of this Section 4, each Person, if any, who controls the Initial Purchaser or a
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Initial Purchaser or such Holder, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.




          5. Miscellaneous.




19









 








               5.1 Rule 144 and Rule 144A. For so long as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the 1934 Act, the Company covenants that it will file the
reports required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so required to file such
reports, the Company covenants that it will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, as such Rule may be amended from time to time, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant to Rule 144A under
the 1933 Act, as such Rule may be amended from time to time, and it will take such further action
as any Holder of Registrable Securities may reasonably request for such purpose, and (c) take such
further action that is reasonable in the circumstances, in each case, to the extent required from
time to time to enable such Holder to sell its Registrable Securities without registration under
the 1933 Act within the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act,
as such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.



               5.2 No Inconsistent Agreements. The Company has not entered into and the Company will
not after the date of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the Company’s other
issued and outstanding securities under any such agreements.



               5.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities (assuming conversion of all Securities into Common Stock) affected by such
amendment, modification, supplement, waiver or departure.


Notwithstanding the foregoing, this Agreement may be amended by a written agreement between the
Company and the Initial Purchaser, without the consent of the Holders of the Registrable
Securities, in order to cure any ambiguity or to correct or supplement any provision contained
herein, provided that no such amendment shall adversely affect the interest of the Holders of
Registrable Securities. Each Holder of Registrable Securities outstanding at the time of any
amendment, modification, waiver or consent pursuant to this Section 5.3, shall be bound by such
amendment, modification, waiver or consent, whether or not any notice or writing indicating such
amendment, modification, waiver or consent is delivered to such Holder.




               5.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, facsimile, or any courier
guaranteeing overnight delivery (a) if to a Holder, at the most current address given by such
Holder to the Company in a Questionnaire or by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set



20









 







forth in the Purchase Agreement with respect to the Initial Purchaser; and (b) if to the
Company, initially at the Company’s address set forth in the Purchase Agreement, and thereafter at
such other address of which notice is given in accordance with the provisions of this Section 5.4.



          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged, if sent by facsimile; and on the next
business day if timely delivered to an overnight courier.




          Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in such
Indenture.




               5.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.



               5.6 Third Party Beneficiaries. The Initial Purchaser (even if the Initial Purchaser
is not a Holder of Registrable Securities) shall be a third party beneficiary to the agreements
made hereunder between the Company, on the one hand, and the Holders, on the other hand, and shall
have the right to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder. Each Holder of
Registrable Securities shall be a third party beneficiary to the agreements made hereunder between
the Company, on the one hand, and the Initial Purchaser, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.



               5.7 Specific Enforcement. Without limiting the remedies available to the Initial
Purchaser and the Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2.1 hereof may result in material irreparable injury to the Initial
Purchaser or the Holders for which there is no adequate remedy at law, that it may not be possible
to measure damages for such injuries precisely and that, in the event of any such failure, the
Initial Purchaser or any Holder may seek such relief as may be required to specifically enforce the
Company’s obligations under Sections 2.1 hereof.



               5.8 Restriction on Resales. Until the expiration of two years after the original
issuance of the Securities, the Company will not, and will cause its Affiliates not to, resell any
Securities that are “restricted securities” (as such term is defined under Rule



21









 




144(a)(3) under the 1933 Act) that have been reacquired by any of them and shall immediately
upon any purchase of any such Securities submit such Securities to the Trustee for cancellation.




               5.9 Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.



               5.10 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



               5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.



               5.12 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.



               5.13 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by the Issuer with
respect to the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.



[Signature page follows]




22









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 
	 	 	DENDREON CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	Name: Richard F. Hamm, Jr.	 	 
	 	 	Title: Senior Vice President, Corporate Development, General Counsel and Secretary






Confirmed and accepted as




     of the date first above




     written:




	 	 	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH

               
   INCORPORATED	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:	 	 
	Title: