EXECUTION VERSION
EXHIBIT 10.4
FOURTH AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This FOURTH AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET
(this "AMENDMENT") is made effective as of May 13, 2005 by and between NORTHWEST
BIOTHERAPEUTICS, INC., a Delaware corporation (the "COMPANY"), and TOUCAN
CAPITAL FUND II, L.P., a Delaware limited partnership ("TOUCAN").
RECITALS
WHEREAS, the Company and Toucan are party to that certain Binding
Convertible Preferred Stock Term Sheet originally dated April 26, 2004 and
amended and restated on October 22, 2004 as further amended on December 27,
2004, January 26, 2005 and April 12, 2005 (the "CONVERTIBLE PREFERRED STOCK TERM
SHEET").
WHEREAS, concurrently herewith, the Company and its affiliates, if
any, and Toucan and its designees, are entering into Amendment No. 6 (the "SIXTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Sixth Amendment, the Company and
Toucan desire to amend the Convertible Preferred Stock Term Sheet as provided
herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Toucan agree as follows:
1. The paragraph of the Convertible Preferred Stock Term Sheet
entitled "Warrants:" is hereby amended and restated in its entirety as follows:
"The Company shall issue $5.85 million in warrant coverage on the
first $5.85 million Convertible Preferred Stock purchased for cash
(the "Preferred Stock Warrants"). Preferred Stock Warrants shall not
be issued upon conversion of notes, exercise of warrants, or other
conversion or exercise. The number of warrants to be so issued shall
be determined on the basis of $0.10 per share. If the total of $5.85
million is invested in Convertible Preferred Stock, the number of
warrants issued shall be exercisable for 58.5 million shares of
Convertible Preferred Stock. The exercise price of such Preferred
Stock Warrants shall be $.04 per share (subject to adjustment for
stock splits, stock dividends and the like). The exercise period
shall commence upon issuance of the Preferred Stock Warrants, and
shall continue for a period of seven (7) years after their respective
issuance dates."
2. Unless specifically modified or changed by the terms of this
Amendment, all terms and conditions of the Convertible Preferred Stock Term
Sheet shall remain in effect and shall apply fully as described and set forth in
the Convertible Preferred Stock Term Sheet.
3. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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EXECUTION VERSION
The Company and Toucan have executed this FOURTH AMENDMENT TO
AMENDED AND RESTATED BINDING TERM SHEET as of the day and year first written
above.
TOUCAN CAPITAL FUND II, L.P. NORTHWEST BIOTHERAPEUTICS, INC.
By: By:
--------------------------------- ----------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
