NORTHWEST BIOTHERAPEUTICS FORM of SECURITIES PURCHASE AGREEMENT
NORTHWEST
BIOTHERAPEUTICS
FORM
of SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
is made and entered into as of ______, 2009 (the “Effective
Date”), by and between Northwest Biotherapeutics, Inc., a
United States Delaware corporation (the “Company”),
and _______________ ,the “Purchaser”).
Recitals
Whereas,
the Company desires to issue and sell, and Purchaser desires to purchase, common
stock of the Company on the terms and conditions set forth herein;
Whereas,
the Company has authorized the sale and issuance of common stock of the Company,
and a warrant for certain additional shares of common stock of the Company, on
the terms and conditions set forth herein;
Agreement
Now,
Therefore, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, and covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Agreement
To Sell And Purchase.
The
Purchaser hereby agrees to purchase, and the Company hereby agrees to sell and
issue to the Purchaser, ______ ($___________) of common stock of the Company, at
a purchase price of ______________ ($X.XX) (the “Purchase Price”), based upon
the average of the closing prices of the common stock of the Company on the U.S.
NASD Over the Counter Bulletin Board market (the “US Market”) on the five
trading days preceding execution of this Stock Purchase Agreement by the
Purchaser. Accordingly, the Company has authorized the sale and
issuance to the Purchaser of ___________________________________ (_____________)
shares of common stock of the Company at the Purchase Price (the
“Shares”). The Company also hereby agrees to issue to the Purchaser,
and the Purchaser hereby agrees to receive, for no additional consideration, a
warrant to purchase an additional________________________ (________) shares of
common stock of the Company (the “Warrant Shares”), on the terms and conditions
set forth in the warrant agreement attached hereto as Attachment A (the
“Warrant”). At the Closing (as hereinafter defined), the Company
hereby agrees to issue and sell the Shares and the Warrant to the Purchaser, and
the Purchaser agrees to purchase the Shares and the Warrant from the Company, on
the terms and conditions set forth herein.
2. Closing,
Delivery And Payment.
The
closing of the sale and purchase of the Shares under this Agreement will take
place on ____________, 2009, or at such other time or place as the Company and
the Purchaser may mutually agree. Upon Closing, the Company will
deliver to the Purchaser a stock certificate representing the number of Shares
being purchased by the Purchaser at such Closing, against payment of the
applicable purchase price by wire transfer of immediately available funds to
such account as may be designated by the Company.
3. Company
Representations and Warranties, and Conditions to Closing.
The
Company hereby represents and warrants to the Purchaser that as of the Closing
hereunder:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all necessary corporate power
and authority to (i) own, operate and occupy its properties and to carry on its
business as presently conducted and (ii) enter into this Agreement and the other
agreements, instruments and documents contemplated hereby, and to consummate the
transactions contemplated hereby and thereby. The Company is
qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect.
(b) All
necessary corporate proceedings, votes, resolutions and approvals relating to
the issuance and sale of the Shares will have been completed by the
Company. Upon execution, this Agreement will constitute a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
(c) The
Shares purchased pursuant to this Agreement will be, upon payment by the
Purchaser in accordance with this Agreement, duly authorized, validly issued,
fully paid and non-assessable.
(d) The
Company will have provided to the Purchaser all due diligence information
requested by the Purchaser in regard to the business, operations, prospects,
assets, liabilities, structure, legal aspects and condition, financial or
otherwise, of the Company.
4. Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company that as of the Closing
hereunder:
(a) All
necessary corporate or other proceedings, votes, resolutions and approvals
relating to the issuance and sale of the Shares will have been completed by the
Purchaser. The Purchaser has full power and authority to enter into this
Agreement. Upon execution, this Agreement will constitute a valid and
legally binding obligation of the Purchaser, enforceable in accordance with its
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
(b) The
Shares to be received by the Purchaser and the Conversion Shares (collectively,
the “Securities”)
will be acquired for investment for the Purchaser’s own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and the Purchaser has no present intention of selling, granting any
participation in or otherwise distributing the same except in compliance with
applicable U.S. and U.K. securities laws.
(c) The
Purchaser is an “accredited
investor” within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act.
(d) The
Purchaser is an experienced investor in securities of companies in the
development stage, can bear the economic risk of its investment, including a
total loss, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Securities. The Purchaser has conducted its own due diligence
review of the Company and received copies or originals of all documents it has
requested from the Company.
(e) The
Purchaser understands that the issuance of the Securities has not been, and will
not be, registered under the Securities Act, by reason of a specific exemption
from the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
the Purchaser’s representations as expressed herein. The Purchaser
understands that the Securities are characterized as “restricted
securities” under applicable U.S. federal and state securities laws and
that, pursuant to these laws, Purchaser must hold the Securities indefinitely
unless subsequently registered for resale with the Securities and Exchange
Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements is available.
5. Legends.
The
parties understand and agree that the certificates evidencing the Securities may
bear the following legends (or a substantially similar legend) and such other
legends as may be required by applicable laws of any state or foreign
jurisdiction:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER
THE ACT OR UNLESS SUCH TRANSACTION IS IN COMPLIANCE WITH APPLICABLE FEDERAL AND
STATE SECURITIES LAWS.”
6. Registration
Rights.
6.1
Demand
Registration. If, at any time after the initial purchase
of the Shares, holders of at least 30% of such Shares request
that the Company file a Registration Statement covering at least 30% of the
Shares, the Company will undertake commercially reasonable efforts, as promptly
as practicable, to cause the Shares attributable to be registered, provided,
however, that the Company will not be obligated to effect more than one
registration per year under these demand right provisions. Any
registration of the Shares by the Company must be made using a Form S-1
registration statement, as the Common Stock of the Company is trading on the
NASD Over-The-Counter Bulletin Board.
6.2 Registration on Form
S-3: In the event that the Company becomes eligible to
file Registration Statements on Form S-3 (or any equivalent successor short
form), the Holders of a majority of the Shares will have the right to require
the Company file such a Registration on Form S-3, provided that the anticipated
aggregate offering price in each such registration on Form S-3 exceeds $5
million, and provided further that the Company will not be obligated to effect
more than two registrations per year under these S-3 registration
provisions.
6.3 Piggy-Back
Registration: The Holders of the Shares will be entitled
to unlimited “piggy-back” registration rights on all registrations of the
Company.
6.4 Transfer of Registration
Rights: The registration rights provided herein may be
transferred to any transferee permitted under applicable securities laws,
provided that the Company is given advance written notice thereof, and provided
that the transferee agrees in writing to be bound by the terms of this
Agreement.
6.4 Costs: The Company
will bear all reasonable and customary expenses relating to the preparation and
filing of any registrations which the Company is required to undertake pursuant
to this Agreement.
7. Miscellaneous
7.1 Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of
law. The parties here by agree that any legal action, suit or
proceeding arising out of or relating to this Agreement will be brought in
federal or state court located in Delaware.
7.2 Entire Agreement;
Amendments. This Agreement (including the Schedules and
Exhibits hereto, which are an integral part of this Agreement), constitute the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof. Except as otherwise expressly
provided herein, neither this Agreement nor any term hereof or thereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by the Company and the Purchaser.
7.3 Notices. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
be effective upon delivery when delivered (a) personally; (b) by facsimile,
provided a copy is mailed on the same day by overnight delivery with a
nationally recognized overnight delivery service; (c) by overnight delivery with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and
facsimile numbers for such communications will be,
in the
case of the Purchaser:
and in
the case of the Company:
Xx. Xxxxx
Xxxxxxx
President
and CEO
Northwest
Biotherapeutics
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Tel: x0-000-000-0000
Fax: x0-000000-0000
or at
such other person, address and/or facsimile number as the receiving party will
have furnished to the sending party in writing.
7.4 Severability. The
representations, warranties, covenants and agreements made and incorporated by
reference herein will survive any investigation made by or on behalf of the
Purchaser or the Company, and will survive for two years after the Effective
Date.
7.5 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof will inure to the benefit of, and be binding upon, the
respective successors, assigns, heirs, executors and administrators of the
parties hereto. The Purchaser may transfer or assign all or any
portion of its rights under this Agreement to any person or entity permitted
under applicable securities laws.
7.6 Interpretations. All
pronouns and any variations thereof will be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the person or persons
or entity or entities may require. All references to “$” or dollars
herein will be construed to refer to United States dollars. The titles of the
Sections and subsections of this Agreement are for convenience or reference only
and are not to be considered in construing this Agreement.
7.7 Severability. In
case any provision of this Agreement is determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
7.8 Counterparts. This
Agreement may be executed in counterparts, each of which when so executed and
delivered will constitute a complete and original instrument but all of which
together will constitute one and the same agreement, and it will not be
necessary when making proof of this Agreement or any counterpart thereof to
account for any counterpart other than the counterpart of the party against whom
enforcement is sought.
* * * * *
In Witness
Whereof, the
parties hereto have executed this Securities
Purchase Agreement as of the date set forth in the first paragraph
hereof.
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COMPANY:
Northwest
Biotherapeutics, Inc.
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By:
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Name: Xx.
Xxxxx Xxxxxxx
Title: President
and Chief Executive Officer
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PURCHASER:
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By:
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Name:
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Title:
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