UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 3, 2014
Dendreon Corporation
(Exact Name of Registrant as Specified in Its Charter)
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| Delaware |
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001-35546 |
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22-3203193 |
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of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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| 1301 2nd Avenue, Seattle, Washington |
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98101 |
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(Zip Code) |
Registrant’s telephone number, including area code: (206) 256-4545
Not applicable.
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
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On June 3, 2014, John H. Johnson, Chairman of the Board of Directors (the “Board”), President and Chief Executive Officer of Dendreon Corporation (the “Company”), notified the Company that he is
resigning from the Board, effective immediately, and resigning as President and Chief Executive Officer, effective August 15, 2014. Mr. Johnson’s resignation is not due to any disagreement with the Company on any matter relating to
the Company’s operations, policies or practices. With Mr. Johnson’s departure from the Board, Lead Independent Director Douglas G. Watson has been elected as Chairman of the Board. |
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In connection with his resignation, Mr. Johnson entered into a Transition and Separation Agreement with the Company, dated June 9, 2014 (the “Separation Agreement”). Under the terms of the Separation
Agreement, Mr. Johnson agreed to continue to serve as President and Chief Executive Officer of the Company, in accordance with the terms of his employment agreement with the Company, until August 15, 2014. In exchange for this commitment,
the Company shall pay Mr. Johnson the following amounts within 30 days following August 15, 2014: (i) $198,000, less applicable withholding amounts, if Mr. Johnson remains employed with the Company through August 15, 2014;
(ii) $75,000, less applicable withholding amounts, if the Company executes and delivers a contract manufacturing agreement with a third party on or before August 15, 2014 and Mr. Johnson is employed by the Company through such
execution date; and (iii) $75,000, less applicable withholding amounts, if the Company executes and delivers a co-promotion agreement on or before August 15, 2014 with a third party that provides that the Company will detail one or more of
such third party’s products in exchange for reimbursement of a portion of the Company’s sales costs and Mr. Johnson is employed by the Company through such execution date. |
Pursuant to the terms of the Separation Agreement, any vested equity compensation awards held by Mr. Johnson as of August 15, 2014
shall be treated in accordance with the terms of the applicable plan and award agreement. All unvested equity compensation awards held by Mr. Johnson as of August 15, 2014 shall terminate as of such date and shall be of no further force or
effect.
The Separation Agreement also includes mutual non-disparagement provisions.
The foregoing description of the Separation Agreement is qualified in its entirety by reference to the Separation Agreement, which is filed as
Exhibit 10.1 hereto and is incorporated herein by reference.
The full text of the Company’s press release is attached hereto as
Exhibit 99.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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| 10.1 |
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Transition and Separation Agreement, dated June 9, 2014. |
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| 99.1 |
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Dendreon Corporation press release dated June 9, 2014. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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DENDREON CORPORATION |
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| Date: June 9, 2014 |
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/s/ Robert Crotty |
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Robert Crotty |
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Executive Vice President, General Counsel and Secretary |
EXHIBIT INDEX
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| Exhibit No. |
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Description |
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| 10.1 |
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Transition and Separation Agreement, dated June 9, 2014. |
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| 99.1 |
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Dendreon Corporation press release dated June 9, 2014. |
Exhibit 10.1
EXECUTION COPY
TRANSITION AND SEPARATION AGREEMENT
This Transition and Separation Agreement (the “Agreement”) is made as of June 9, 2014 by and between Dendreon
Corporation, a Delaware corporation (the “Company”), and John Johnson (“Executive”). The Company and Executive are collectively referred to herein as the “Parties”. Capitalized terms not defined
herein will have the meanings ascribed to them in the Employment Agreement (as defined below).
WHEREAS, the Company and Executive are
parties to that certain employment agreement dated as of January 31, 2012, as amended September 20, 2012 (the “Employment Agreement”), pursuant to which Executive currently serves as President and Chief Executive Officer;
WHEREAS, following a transition period, the Parties desire to terminate their employment relationship and to terminate the Employment
Agreement (except as otherwise explicitly provided herein);
NOW, THEREFORE, for and in consideration of the promises and the
consideration more fully set forth herein, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Company and Executive mutually agree as follows:
1. Resignation as Officer and Employment Termination Date. Executive’s termination of employment will be effective as of
August 15, 2014 (the “Employment Termination Date”). Executive shall resign from his position as an officer of the Company and any other positions he may hold with the Company or any of its affiliates as of the Employment
Termination Date, and Executive agrees that he will execute any and all documents necessary to effect such resignations.
2. Employment
Through Employment Termination Date. During the period from the date of this Agreement through the Employment Termination Date, Executive will continue to be employed by the Company as President and Chief Executive Officer of the Company in
accordance with terms of his Employment Agreement and in a manner consistent with past services in such roles.
3. Payments and
Benefits.
(a) Accrued Obligations. Within ten (10) days following the Employment Termination Date, the Company will pay
Executive his full Base Salary and accrued but unused vacation pay through the Employment Termination Date, each at the rate then in effect, plus all other benefits to which Executive has a vested right at that time.
(b) Benefit Plans. Executive’s participation in the employee benefit plans and
arrangements of the Company and its affiliates, including the Company’s equity compensation plans shall terminate effective as of the Employment Termination Date. Any vested equity compensation awards held by Executive as of the Employment
Termination Date shall be treated in accordance with the terms of the applicable plan and award agreement. All unvested equity compensation awards held by Executive as of the Employment Termination Date shall terminate as of such date and shall be
of no further force or effect.
(c) Additional Bonus. In consideration of Executive’s agreements and covenants contained
herein, provided that Executive has delivered an executed release in the form provided by the Company (which shall be a “mutual” release) within twenty-one (21) days following the Employment Termination Date (and any revocation period
with respect to such release has expired), the Company shall pay Executive the following amounts within thirty (30) days following the Employment Termination Date:
(i) $198,000, less applicable withholding amounts, if Executive remains employed with the Company through August 15, 2014;
(ii) $75,000, less applicable withholding amounts, if the Company executes and delivers a contract manufacturing agreement with a third-party
on or before August 15, 2014 and Executive is employed by the Company through such execution date; and
(iii) $75,000, less
applicable withholding amounts, if the Company executes and delivers a co-promotion agreement on or before August 15, 2014 with a third-party providing that the Company will detail one or more of such third party’s products in
exchange for reimbursement of a portion of DNdN’s sales costs and Executive is employed by the Company through such execution date.
(d) Section 409A of the Internal Revenue Code. This Agreement is intended to comply with, or otherwise be exempt from,
Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations promulgated thereunder (“Section 409A”). Notwithstanding any provision to the contrary in this Agreement, no payment or distribution
under this Agreement that constitutes an item of deferred compensation under Section 409A, and becomes payable by reason of Executive’s termination of employment with the Company will be made to Executive unless Executive’s
termination of employment constitutes a “separation from service” (as the term is defined Section 409A) solely to the extent required to avoid accelerated taxation or tax penalties in respect of such amounts. For purposes of this
Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A. It is intended that this Agreement shall comply with the provisions of Section 409A so as not to
subject Executive to the payment of additional taxes and interest under Section 409A. In furtherance of this intent, the Agreement shall be interpreted, operated, and administered, and payments hereunder reported, in a manner consistent with
these intentions. To the extent that any reimbursable expenses hereunder are deemed to constitute compensation to Executive, such expenses shall be paid or reimbursed promptly, but not later than by December 31 of the year following the year in
which such expenses were incurred. The amount of such expenses eligible for reimbursement in one calendar year shall not affect the amount of expenses eligible for reimbursement in any other calendar year, and Executive’s right to reimbursement
of any such expenses shall not be subject to liquidation or exchange for any other benefit.
4. Termination of Employment Agreement;
Survival of Restrictive Covenants. The Parties agree that the Employment Agreement shall terminate and be of no further effect, effective as of the Employment Termination Date, except for Article 13 and Section 15.9 of the Employment
Agreement, which shall continue in full force and effect.
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5. Mutual Non-Disparagement.
(a) Through the Employment Termination Date and thereafter, Executive agrees not to disparage or encourage or induce others to disparage the
Company, its affiliates or any of their respective current or former officers, directors, employees, consultants, products or services (collectively, the “Company Parties”). For purposes of this Section 5(a), the term
“disparage” means making comments or statements to the press or to any entity with whom the Company or any affiliate has a business relationship (for example, any vendor, supplier, customer, landlord or distributor) or any public
statement, in each case, that is intended to materially damage, can be reasonably expected to materially damage or actually results in material damage to, any of the Company Parties.
(b) Through the Employment Termination Date and thereafter, the Company agrees to instruct and cause the members of its Board of Directors
and the executive employees of the Company, not to disparage or encourage or induce others to disparage Executive during the time that such individuals provide services to, or are employed by, the Company and its affiliates. For purposes of
this Section 5(b) the term “disparage” means making comments or statements to the press or to any entity with whom Executive has a business relationship (for example, any vendor, supplier, customer, landlord or distributor) or
any public statement, in each case, that is intended to materially damage, can be reasonably expected to materially damage or actually results in material damage to Executive. “Executive employee” means an employee at the senior vice
president level and above.
(c) Notwithstanding the foregoing, nothing in this Section 5 shall prevent any person from making any
truthful statement (i) necessary with respect to any litigation, arbitration or mediation involving this Agreement in the forum in which such litigation, arbitration or mediation properly takes place or (ii) that is protected by law or
required by law, legal process or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive or the Company.
6. No Additional Obligations. The Company shall not be obligated to pay any sums to Executive or to provide any benefits to Executive
after the Employment Termination Date, except (i) as set forth in this Agreement; and (ii) for reimbursement of business expenses in accordance with Company policy and (iii) for claims or rights to indemnification arising under the
charter or by-laws of the Company (and/or its affiliates) or any rights arising from the director and officer insurance policy or policies of the Company or under Section 15.9 of the Employment Agreement.
7. Cooperation Following Employment Termination Date. Following the Employment Termination Date, Executive agrees to cooperate and
assist the Company so as to aid the Company in connection with de minimis informational requests relating to Executive’s employment by the Company or about which Executive is knowledgeable.
8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the respective successors and (in the case
of the Company) assigns of the Parties to this Agreement.
9 Choice of Law. To the extent not preempted by federal law, the
provisions of this Agreement shall be construed and enforced in accordance with the laws of the state of Delaware. Venue for any action arising from this Agreement shall be exclusively in King County, Washington.
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10. Severability. If any provision of this Agreement shall be held invalid, void or
unenforceable by a court of competent jurisdiction, the remaining provisions shall not be affected thereby and shall remain in full force and effect. In the event that any covenant contained herein is not enforceable in accordance with its terms,
Executive and the Company agree that such provision shall be reformed to make it enforceable in a manner that provides as nearly as possible the result intended by this Agreement.
11. Entire Agreement. This Agreement contains the entire agreement between the Parties pertaining to the subject matter hereof, and
shall be considered and understood to be a contractual commitment and not a mere recital. No covenants, agreements, representations, or warranties of any kind whatsoever, whether express or implied in law or fact, have been made by the Parties,
except as specifically set forth in this Agreement. This Agreement supersedes any and all prior and contemporaneous agreements, term sheets, negotiations and understandings, whether written or oral, pertaining to the subject matter hereof.
12. Modifications. No modification, amendment, or waiver of any of the provisions contained in this Agreement, or any future
representations, promise, or condition in connection with the subject matter of this Agreement, shall be binding upon any party to this Agreement unless made in writing and signed by such party.
13. Voluntary Agreement. EXECUTIVE ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THE FOREGOING PROVISIONS AND THOSE SUCH PROVISIONS ARE
REASONABLE AND ENFORCEABLE. EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS SIGNED THIS AGREEMENT AS HIS OWN AND VOLUNTARY ACT.
14.
Notice. All notices or other communications required or permitted by this Agreement: (a) must be in writing; (b) must be delivered to each party at the address set forth below, or any other address that a party may designate by
notice to the other party; and (c) are considered delivered on the earlier of: (i) on the date of delivery if delivered personally or (ii) on the first business day following the date of dispatch if sent by a nationally recognized
overnight courier (providing proof of delivery), in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
if to Executive, at his current address on file with the Company or such different address as Executive may provide the Company in writing;
and
if to the Company:
Dendreon Corporation
Attention: General Counsel
200 Crossing Blvd
Bridgewater, NJ 08807
15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such
counterparts when taken together shall constitute but one instrument.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties hereby execute
this Agreement as of the first date set forth below.
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JOHN H. JOHNSON |
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| DATED: June 9, 2014 |
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/s/ John H. Johnson |
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DENDREON CORPORATION |
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| DATED: June 9, 2014 |
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By: |
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/s/ Robert L. Crotty |
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Name: Title: |
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Robert L. Crotty Executive Vice President
and General Counsel |
Exhibit 99.1
Dendreon Announces Leadership Transition
John H. Johnson to Step Down as Chairman, President and CEO; Douglas G. Watson Elected Chairman
SEATTLE, June 9, 2014 – Dendreon Corporation (Nasdaq: DNDN) today announced that John H. Johnson has informed the Board of Directors of
his plans to step down as president and chief executive officer for personal reasons. Mr. Johnson has resigned from the Board, effective June 3, 2014, and the Board has elected Douglas G. Watson, Dendreon’s lead independent director,
as chairman of the Board.
Dendreon’s Board is working with an executive search firm to help identify Mr. Johnson’s successor.
Mr. Johnson will serve as chief executive officer until August 15, 2014.
“On behalf of the Board, I would like to thank John for his
leadership, dedication, and passion for helping prostate cancer patients live longer and better lives through PROVENGE,” said Mr. Watson. “While serving as chief executive officer, John has made many significant contributions to
Dendreon and driven important strategic initiatives to help reposition the Company, including launching a new commercial strategy, gaining marketing authorization in the European Union, increasing manufacturing efficiencies, significantly lowering
costs, and advancing our clinical pipeline.”
“I want to thank the team for all that they have accomplished over the past two years in the face
of significant challenges,” said Mr. Johnson. “I first joined Dendreon because of my admiration for the Company as a pioneer in immunotherapy and because of my belief in the power of PROVENGE as a personalized cancer treatment. That
belief still holds true today. While now is the right time personally for me to transition from my leadership role, I am confident that PROVENGE will continue to be an important treatment option to help patients in their fight against cancer.
Dendreon has some of the most passionate and dedicated employees in the industry, and I know they will remain focused on the Company’s important mission.”
Mr. Watson has served as one of Dendreon’s independent directors since February 2000. He is chief executive officer of Pittencrieff Glen Associates,
a consulting firm that he founded in 1999. Prior to that, Mr. Watson’s career spanned 33 years with Geigy/Ciba-Geigy/Novartis, during which time he held a variety of positions in the UK, Switzerland and the U.S. Mr. Watson was
president of Ciba U.S. Pharmaceuticals Division from 1986-1996, when he was appointed president and chief executive officer of Ciba-Geigy U.S. Corporation. Mr. Watson also served as president and chief executive officer of Novartis U.S.
Corporation from 1997-1999. Mr. Watson currently serves as chairman of OraSure Technologies, Inc. and is a director of Wright Medical Group, Inc.
About Dendreon
Dendreon Corporation is a biotechnology
company whose mission is to target cancer and transform lives through the discovery, development, commercialization and manufacturing of
novel therapeutics. The Company applies its expertise in antigen identification, engineering and cell processing to produce active cellular immunotherapy (ACI) product candidates designed to
stimulate an immune response in a variety of tumor types. Dendreon’s first product, PROVENGE® (sipuleucel-T), was approved by the U.S. Food and Drug Administration (FDA) in April 2010.
Dendreon is exploring the application of additional ACI product candidates and small molecules for the potential treatment of a variety of cancers. The Company is headquartered in Seattle, Washington, and is traded on the NASDAQ Global Market under
the symbol DNDN. For more information about the Company and its programs, visit http://www.dendreon.com/.
Statements in this press release that are not
strictly historical in nature constitute “forward-looking statements.” Such statements include, but are not limited to, statements regarding a successor chief executive officer, and the future success of PROVENGE and our clinical pipeline.
Such forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause Dendreon’s actual results to be materially different from historical results or from any results expressed or implied by
such forward-looking statements. These factors include, but are not limited to, whether we are able to identify and successfully recruit a successor chief executive officer; our inability to achieve and sustain commercial success for PROVENGE; the
identification of efficacy, safety or other issues with PROVENGE; a slower than anticipated adoption by treating physicians of PROVENGE for the treatment of patients with advanced prostate cancer for a variety of reasons, including competing
therapies, instability in our sales force, the risk that we cannot replace vacant sales positions on a prompt basis, perceived difficulties in the treatment process, delays in obtaining reimbursement or for other reasons; any promotional limitations
imposed by the FDA or the EU on our ability to commercialize and market PROVENGE; unexpected difficulties and costs associated with the rapid expansion of our commercial operations to support the commercial launch of PROVENGE; the impact
of competing therapies on sales of PROVENGE, the failure to achieve reimbursement approvals in Europe, manufacturing or quality difficulties, the dilution or other effects resulting from capital raising or debt restructuring transactions,
disruptions or delays and other factors discussed in the “Risk Factors” section of Dendreon’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014. All forward-looking statements are qualified in their entirety
by this cautionary statement. Dendreon is providing this information as of the date of this press release and does not undertake any obligation to update any forward-looking statements contained in this release as a result of new
information, future events or otherwise.
CONTACT:
Dendreon Corporation
Corporate Communications
Lindsay Rocco
media@dendreon.com