Exhibit 10.24
AMENDED AND RESTATED BINDING TERM SHEET
CONVERTIBLE PREFERRED STOCK
Northwest Biotherapeutics, Inc.
October 22, 2004
THIS AMENDED AND RESTATED BINDING CONVERTIBLE PREFERRED STOCK TERM SHEET AMENDS
AND RESTATES THAT CERTAIN BINDING CONVERTIBLE PREFERRED STOCK TERM SHEET BY AND
BETWEEN THE PARTIES HERETO DATED AS OF APRIL 26, 2004.
Issuer: Northwest Biotherapeutics, Inc. (the "Company"), a
Delaware corporation.
Purchasers: Toucan Capital Fund II, L.P and/or its designee(s)
(collectively, "Investor"), and such other
investors as may subsequently be identified (the
"Other Investors").
Election to lead At Investor's election on or before the end of the
equity financing: Bridge Funding Period, Investor shall have the
right to lead the equity financing and assemble the
syndicate of Other Investors.
Securities to be 10% Cumulative Convertible Preferred Stock
Issued: ("Convertible Preferred" or "Convertible Preferred
Stock"), convertible into common stock of the
Company ("Common" or "Common Stock").
Share price: The price per share shall be the lesser of $0.10
per share or 35% discount to the average closing
price during the twenty trading days prior to
closing; provided, however, that in no event will
the price per share be less than $.04. The share
price provided herein is subject to adjustment for
dividends, splits, etc.
Amount of Issuance: Up to $40 million (including any shares issuable
upon conversion of Bridge Funding, but not
including any shares issuable upon exercise of
warrants, options, and similar instruments or
obligations) (the "Maximum Issuance"), in one or
more tranches.
First Closing: First closing ("First Closing") to occur upon
completion of Bridge Period, documentation and
fulfillment of conditions to closing.
Subsequent Closings: Additional closings of the Convertible Preferred
Stock after the First Closing ("Subsequent
Closings") may take place at any time on or before
12 months after the First Closing (the "Equity
Financing Period"), so long as the aggregate amount
raised does not exceed the Maximum Issuance. All
subsequent closings of the Convertible Preferred
Stock shall be on the same terms and conditions as
in the First Closing and shall use the same
documentation as in the First Closing.
Warrants: The Company shall issue $7 million (or, in the
event that the November Bridge Funding is not
provided, $7.5 million) in warrant coverage on the
first $7 million
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(or, in the event that the November Bridge Funding
is not provided, $7.5 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 $7 million (or, in the event that the
November Bridge Funding is not provided, $7.5
million) is invested in Convertible Preferred
Stock, the number of warrants issued shall be
exercisable for 70 million (or, in the event that
the November Bridge Funding is not provided, 75
million) shares of Convertible Preferred Stock. The
exercise price of such Preferred Stock Warrants
shall be the lesser of $0.10 per share (subject to
adjustment for stock splits, stock dividends and
the like) and 35% discount to the average closing
price during the twenty trading days prior to the
First Closing; provided, however, that in no event
will the exercise price be less than $.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.
Tax Treatment of Warrants: The Company and the purchasers of the Convertible
Preferred Stock shall agree upon the fair market
value of the Preferred Stock Warrants, and the
Company shall make all of its tax filings on this
basis, and instruct its accountants and other
tax-preparation professionals to prepare all tax
filings and returns on the basis of the foregoing.
Right of First Refusal: Investor shall have a right of first refusal to
purchase up to $15 million of the Convertible
Preferred Stock. This right of first refusal shall
apply at each closing during the Equity Financing
Period, until the $15 million amount is reached.
Such purchases shall be determined in addition to,
and shall not be deemed to include, any purchases
of Convertible Preferred Stock by Investor
(including its designees) through conversion of
Bridge Funding, or exercise of any warrants or
similar instruments. Such right of first refusal
shall apply regardless of whether or not Investor
leads the financing during any part of the Equity
Financing Period.
Conditions to Closings: The following conditions shall apply to each
closing for the purchase and sale of Convertible
Preferred Stock. Each such condition must be
satisfied or waived, and such satisfaction and/or
waiver of each such condition shall be determined
by Investor and, as applicable, Other Investors in
their respective sole discretion, individually and
not jointly.
- The Company shall have in all material
respects performed, and be in compliance with,
all obligations, agreements, covenants,
closing conditions and other provisions
contained in the Amended and Restated
Recapitalization Agreement by and between the
parties hereto dated July 30, 2004, as amended
on October 22, 2004 (the "Recapitalization
Agreement"), the Notes evidencing Bridge
Funding (to the extent any such notes remain
outstanding), and the other Related
Recapitalization.
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Documents including, without limitation, the
financing documents associated with the
issuance of the Convertible Preferred Stock
(the "Financing Documents"), required to be
performed or fulfilled on or before the
applicable closing date.
- All representations and warranties set forth
in the Recapitalization Agreement, the Notes
evidencing Bridge Funding (to the extent any
such notes remain outstanding), and the other
Related Recapitalization Documents shall be
true and complete as of each closing.
- There shall have been no change that has had
or is reasonably likely to have a material
adverse effect on the business, affairs,
prospects, operations, properties, assets,
liabilities, structure or condition, financial
or otherwise, of the Company (as such business
is presently conducted and/or as it is
proposed to be conducted) between the date of
the Recapitalization Agreement and each
closing of purchases of Convertible Preferred
Stock.
- All corporate and other proceedings, and all
documents relating to the issuance and sale of
Convertible Preferred Stock pursuant to the
Recapitalization Agreement shall be
satisfactory in substance and form to Investor
and Other Investors, as applicable. Investor's
counsel and each Other Investors' counsel (if
applicable) shall have received all such
counterpart originals or certified or other
copies of such documents as they may have
requested including, without limitation:
- The resolutions of the Board of Directors
of the Company, authorizing and approving
all matters in connection with the sale
of the Convertible Preferred Stock
certified by the Secretary of the Company
as of the Closing Date.
- All stockholder consents, votes or other
approval required by applicable state or
federal law (including any and all SEC
rules and regulations) and any consents
required by applicable securities
exchanges or markets or corporate
partners required to authorize and
approve all matters in connection with
the sale of Convertible Preferred Stock
as contemplated by this term sheet.
- The Company shall have executed,
delivered and maintained in force (i) a
Convertible Preferred Stock purchase
agreement, (ii) an Investors' Rights
Agreement, (iii) an amended and restated
certificate of incorporation (or if
appropriate, a certificate of
designation), (iv) a voting agreement, if
applicable, and (v) such other documents
as may be necessary or desirable in the
determination of Investor and Other
Investors, as applicable.
- The Investor and Other Investors shall
have received from counsel
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to the Company an opinion letter
containing opinions customary for
transactions similar to the Proposed
Equity Financing in the form reasonably
acceptable to Investor and Other
Investors (including, but not limited to,
an opinion that the issuance of the
Convertible Preferred Stock, the
Preferred Stock Warrants and the
securities issuable upon conversion
and/or exercise thereof pursuant to the
Proposed Equity Financing are exempt from
the registration provisions of the
federal and state securities laws).
- The Company shall have taken all
necessary steps to set the number of
directors on the Company's board of
directors at seven (7) and elect
directors according to the "Board of
Directors" section below, including,
without limitation, execution of a Voting
Agreement if necessary or desirable in
the determination of Investor and Other
Investors, as applicable.
- The Company shall have delivered a
certificate of its Chief Executive
Officer, or other authorized and
responsible officer of the Company
acceptable to Investor and Other
Investors, as applicable, in their
respective sole discretion, certifying
that all closing conditions have been
fulfilled and that all representations
and warranties are applicable and true as
of the date of such closing.
- The Company shall have provided prior to
the applicable closing date all due
diligence information requested by any
investor, and/or necessary to enable such
investor to complete a thorough due
diligence review and obtain a complete
and accurate understanding of the
business, operations, prospects, assets,
liabilities, structure, legal aspects and
condition, financial or otherwise, of the
Company.
- Within the six month period prior to any
closing of Convertible Preferred Stock,
the Company shall not have entered into,
increased, expanded, extended, renewed or
reinstated (or agreed, promised,
committed or undertaken to do so), any
severance, separation, retention, change
of control or similar agreement with any
employee, other than such agreements
entered into with the prior written
approval of Investor and Other Investors,
as applicable.
- Within the six month period prior to any
closing of Convertible Preferred Stock,
the Company shall not have hired, or
agreed to hire, any employee or engaged,
or agreed to engage, any consultant,
independent contractor or any other
non-employee personnel, except in
accordance with the Company's budget that
has been approved by the Company's board
of directors and the Investor and Other
Investors, as applicable;
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- Within the six month period prior to any
closing of Convertible Preferred Stock,
the Company shall not have purchased,
leased, hired, rented or otherwise
acquired directly or indirectly any
rights in or to any asset or facility in
an amount in excess of $10,000, or
agreed, promised or committed to do so,
except in accordance with the Company's
budget that has been approved by the
Company's board of directors and the
Investor and Other Investors, as
applicable.
- [***]*
- All Intellectual Property licenses,
agreements, patent applications and
filings shall be current and in good
standing.
- The Company shall have obtained the
approval of the required number of its
stockholders (the Company shall be
obligated to use its best efforts in good
faith comply with these terms and
conditions to obtain stockholder consent
and, in the event that it uses its best
efforts in good faith to do so and fails
to achieve stockholder approval, the
Company shall not be required to sell the
Convertible Preferred Stock).
- The satisfaction of other customary
conditions of transactions of this sort
that Investor may reasonably require.
Conversion: The Convertible Preferred Stock shall be
convertible at any time, in whole or in part, at
the option of the holder (without any further
payment by the holder) into Common Stock of the
Company. The initial conversion ratio shall be one
share of Common Stock for each share of Convertible
Preferred Stock (the "Conversion Ratio"). The
Conversion Ratio shall be subject to appropriate
adjustment in the event of (i) any subdivision or
combination of the Company's outstanding Common
Stock, (ii) any distribution by the Company of a
stock dividend or assets, (iii) any capital
reorganization or reclassification of the Company
affecting the conversion price, or other similar
transactions, as applicable. The Conversion Ratio
shall also be subject to adjustment pursuant to the
anti-dilution provisions (below).
Rights, Preferences, (1) Dividends: A cumulative dividend shall accrue
Privileges and at the rate of 10% per annum, compounding quarterly
Restrictions: on the Convertible Preferred Stock. No dividends
shall be paid on the Common or any other securities
issued by the Company other than the Convertible
Preferred Stock. Dividends shall be payable as and
when determined
----------
* Confidential Treatment Requested.
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by the Board of Directors, and upon the occurrence
of a liquidation. A liquidation shall be deemed to
include, without limitation, a merger resulting in
a change in control of the Company, sale of all or
substantially all of the assets of the Company, or
transfer of control (not including any transfer of
control that is the result of the sale and issuance
of the Convertible Preferred Stock contemplated
hereunder, the conversion of any of the Bridge
Funding or exercise of any Bridge Warrants or
Preferred Stock Warrants).
(2) Liquidation Preference: In the event of
liquidation or winding up of the Company, the
holders of shares of Convertible Preferred shall be
entitled (at such holders' option) to convert such
shares to Common Stock or to receive, in preference
to the holders of Common, (i) an amount equal to
the original purchase price with respect to such
Convertible Preferred Stock, plus (ii) (to the
extent of current and/or retained earnings) any
dividends accrued but not paid on such Convertible
Preferred Stock, or such lesser amount as is the
maximum amount acceptable under applicable SBA and
SEC rules and regulations. Thereafter, all
remaining assets shall be distributed pro-rata to
the holders of Common Stock and all Convertible
Preferred Stock on an as converted basis. A
liquidation shall be deemed to include, without
limitation, a merger resulting in a change in
control of the Company, sale of all or
substantially all of the assets of the Company, or
transfer of control (not including any transfer of
control that is the result of the sale and issuance
of the Convertible Preferred Stock contemplated
hereunder, the conversion of any of the Bridge
Funding or exercise of any Bridge Warrants or
Preferred Stock Warrants).
(3) Anti-dilution: Notwithstanding anything herein
to the contrary, except for issuances to management
and employees, which must be approved by the Board
pursuant to written benefit plans, and except for
issuances relating to the Bridge Funding under the
Recapitalization Agreement, if the Company issues
(or, directly or indirectly promises, commits, or
undertakes to issue) any additional securities or
instruments at a nominal or effective purchase
price less than the price resulting from the
application of the Conversion Ratio, calculated on
a fully diluted basis with respect to the
Convertible Preferred Stock, then the Conversion
Ratio of such Convertible Preferred Stock shall be
reduced on a full ratchet basis to eliminate the
effect of such dilutive issuance on such
Convertible Preferred Stock.
(4) Protective Provisions: Until fewer than
1,000,000 shares of Convertible Preferred Stock are
outstanding (as adjusted for stock splits, stock
dividends and the like), the Company shall not,
without the approval of the Board of Directors and
the affirmative vote or written consent of the
holders of a majority of the then outstanding
shares of Convertible Preferred Stock: (i)
authorize or issue (including, without limitation,
by way of recapitalization), or obligate itself to
authorize or issue, any equity security of the
Corporation, or any other security exercisable for
or convertible into an equity security of the
Corporation, that has redemption rights or that is
senior to or on parity with the Convertible
Preferred Stock as to dividend rights, voting
rights, liquidation preferences or any other
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rights, preferences or privileges; (ii) increase or
decrease (other than by conversion) the total
number of authorized shares of Convertible
Preferred Stock or Common Stock; (iii) effect any
sale, lease, assignment, transfer or other
conveyance or encumbrance of all or substantially
all of the assets of the Corporation or any of its
subsidiaries in one or more related transactions,
or any consolidation or merger resulting in a
change in control of the Company, or any
reclassification, recapitalization or other change
of any capital stock of the Corporation; (iv)
change the authorized number of directors of the
Corporation; (v) amend or repeal the Certificate
(including by way of any Certificate of
Designation) or the Corporation's Bylaws; (vi)
redeem, purchase or otherwise acquire (or pay into
or set aside for a sinking fund for such purpose)
any of the Common Stock or common stock
equivalents; provided, however, that this
restriction shall not apply to the repurchase of up
to a maximum of $100,000 of Common Stock per year
from employees, officers, directors, consultants,
advisors or other persons performing services for
the Corporation, pursuant to agreements under which
the Corporation has the option to repurchase such
shares at cost upon the occurrence of certain
events, such as the termination of employment;
(vii) effect the liquidation, dissolution or
winding up of the Corporation; or (viii) agree,
promise, commit or undertake to do any of the
foregoing.
(5) Voting Rights: The holders of Convertible
Preferred will have the right to that number of
votes equal to the number of shares of Common Stock
issuable upon conversion of such Preferred Stock.
Private Placement: The Convertible Preferred Stock shall not be
registered under the Securities Act of 1933, as
amended (the "Act") and may not be resold without
such registration or an exemption under the
provisions of the Act. The Convertible Preferred
Stock shall be sold only to "accredited investors,"
as defined in Regulation D under the Act.
Registration Rights At the request of Investor, the Company will use
its best efforts to prepare and file, within 60
days following the First Closing and each
Subsequent Closing, a registration statement on
Form SB-2 or Form S-1 (or if Form S-3 is available,
on Form S-3) (the "Registration Statement") for the
resale of the shares of Common Stock issuable to
the Investor and Other Investors upon conversion of
the Convertible Preferred Stock and upon exercise
of the Warrants, and use its commercially
reasonable efforts to cause the Registration
Statement to become effective within 120 days after
such closing. The Company agrees to make such
filings as are necessary to keep the Registration
Statement effective until the earlier of (A) the
date that the investors have completed the
distribution related to the Common Stock, or (B)
such time that all Common Stock then held by the
investors (including shares of Common Stock
issuable upon conversion of Preferred Stock held by
the investors) can be sold without compliance with
the registration requirements of the Securities Act
pursuant to Rule 144(k) under the Securities Act.
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Liquidated Damages: In the event that the Company
shall fail to cause the Registration Statement to
be timely filed, timely declared effective, or to
be kept effective (other than pursuant to customary
permissible suspension periods), the Company shall
pay as liquidated damages the amount of 1% per
month of the aggregate purchase price for the
securities remaining to be sold pursuant to the
Registration Statement or such lesser amount that
is the maximum permitted under applicable SBA rules
and regulations.
In the event that the Company's Common Stock is no
longer registered under the Securities Exchange Act
of 1934, as amended following completion of the
First Closing, or for any reason the Company does
not register for resale all shares of Common into
which the Convertible Preferred converts, as
provided for above, Investor and each Other
Investor shall have the following registration
rights with respect to the Common Stock into which
such investor's Convertible Preferred converts:
(1) Demand Registration Rights. If, at any
time after the initial purchase of the
Convertible Preferred Stock, holders of at
least 20% of the Common Stock issued or
issuable upon conversion of the Convertible
Preferred Stock request that the Company file
a Registration Statement covering at least 10%
of the Common issued or issuable upon
conversion of the Convertible Preferred (or
any lesser percentage if the anticipated
aggregate offering price would exceed
$2,000,000), the Company shall cause the
shares attributable to the Convertible
Preferred Stock to be registered. The Company
shall not be obligated to effect more than two
registrations per year under these demand
right provisions.
(2) Registration on Form S-3: Holders of
Common issued or issuable upon conversion of
the Convertible Preferred Stock shall have the
right to require the Company to file unlimited
Registration Statements on Form S-3 (or any
equivalent successor form), provided the
Company is otherwise eligible to use Form S-3
for such a registration and the anticipated
aggregate offering price in each registration
on Form S-3 exceeds $1,000,000.
(3) Piggy-Back Registration: Holders of Common
issued or issuable upon conversion of the
Convertible Preferred Stock shall be entitled
to unlimited 'piggy-back' registration rights
on all registrations of the Company.
(4) Transfer of Registration Rights: The
registration rights may be transferred to any
transferee permitted under applicable Federal
and state securities laws, provided that the
Company is given written notice thereof and
provided that the transferee agrees in writing
to be bound by the terms of the stock purchase
agreement and other agreements relating to
this transaction.
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(5) Costs: The Company shall bear all expenses
relating to all such preparation and filings.
(6) Indemnification: The Company shall provide
the Investors with the maximum indemnification
allowed under applicable law with regard to
the registration rights.
Regulatory Costs The Company shall be responsible for completing and
shall bear all costs associated with all regulatory
filings that are necessary in connection with the
transactions described herein, including, without
limitation, U.S. Securities and Exchange Commission
filings (whether these filings are made by the
Company, the purchasers of the Convertible
Preferred Stock or their affiliates), blue sky
filings and/or other necessary filings under
applicable securities market or exchange rules and
regulations.
Board of Directors: The authorized number of directors shall be seven
(7). Four (4) of the seven directors shall be
designated by the holders of a majority of the
Convertible Preferred Stock, two (2) of the
directors shall be outsiders with significant
industry experience who are reasonably acceptable
to the holders of a majority of the Convertible
Preferred Stock, and one (1) of the directors shall
be the CEO of the Company.
D&O Insurance: As promptly as practicable after the First Closing,
the Company shall use best efforts to obtain and
maintain in force $10 million in director and
officer liability insurance coverage.
SBA Provisions: The Company shall make such representations,
warranties and covenants, and shall provide such
documentation and information rights as may be
necessary (e.g., certification that at the time of
Investor's investment the Company is a "small"
business, has the majority of its operations in the
US, and is not engaged in oil and gas exploration,
movie production or certain other prohibited
activities), to satisfy the requirements of the SBA
in regard to investment by Investor in the Company.
Documentation: The purchase of the Convertible Preferred Stock
shall be made pursuant to a Stock Purchase
Agreement, Investor Rights Agreement, Voting
Agreement (if applicable) and Amended and Restated
Certificate of Incorporation (or if appropriate,
certificate of designation) to be drafted by
counsel to the Investor. Such agreements and other
documents shall contain, among other things,
appropriate representations and warranties
(including, without limitation, reps and warranties
concerning the Intellectual Property, the financial
condition of the Company, the absence of litigation
or threats thereof, and full disclosure of all
material information), covenants, protective
provisions, and conditions of closing including
those noted above.
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Miscellaneous: Customary provisions, including applicable law
(Delaware), severability, assignment (except as
provided under the rights of first refusal above,
holders of Convertible Preferred Stock shall be
free to assign or transfer their Convertible
Preferred Stock or rights hereunder to any party
permitted under applicable federal and state
securities laws, as long as transferee agrees to
the terms and obligations of the Convertible
Preferred Stock, respectively), etc.
Transaction Expenses: The Company shall pay, reimburse or otherwise
satisfy, upon demand of Investor, all fees, costs
and expenses incurred and/or undertaken by Investor
relating to the preparation for, development of and
implementation of the Recapitalization Plan set
forth in the Recapitalization Agreement, including,
without limitation, all due diligence expenses and
all expenses relating to the Bridge Funding and the
Anticipated Equity Financing and the transactions
contemplated hereby and by the Recapitalization
Agreement and the documentation of all of the
foregoing (including, without limitation all legal
fees and expenses). This obligation shall apply
regardless of whether or not all of the
transactions contemplated in the Recapitalization
Agreement close. At each closing of the Anticipated
Equity Financing, at Investor's sole discretion,
and with respect to any or all of such fees, costs
and expenses accrued through such closing, the
Company shall (a) pay Investor in cash concurrently
with such closing (or at Investor's sole
discretion, Investor may withhold such amount from
the wire of investments proceeds), (b) issue a
promissory note in the form of the Notes in
principal amount equal to such fees, costs and
expenses; or (c) treat such fees, costs and
expenses as an unsecured payable. At any time
following such closing, Investor may require any
amounts that it elected to have the Company treat
as unsecured amounts payable to be paid in cash or
satisfied by issuance of a Note in the principal
amount of some or all of such unsecured obligation.
Cross-default: The Company acknowledges that the financing
contemplated by this term sheet is part of an
integrated Recapitalization Plan, as set forth in
the Recapitalization Agreement. The Company further
acknowledges and agrees that this term sheet is
subject to all terms and conditions set forth in
the Recapitalization Agreement and the other
Related Recapitalization Documents and that the
Recapitalization Agreement and the other Related
Recapitalization Documents are subject to all terms
and conditions set forth in this Term Sheet. The
Company agrees that any default by the Company
under any provision of this Term Sheet, the
Recapitalization Agreement or any of the other
Related Recapitalization Documents will constitute
a default under this Term Sheet, each other Related
Recapitalization Document and the Recapitalization
Agreement.
Standstill/exclusivity: The standstill/exclusivity provision in the
Recapitalization Agreement shall remain in full
force and effect during the Equity Financing
Period.
Termination The Company's obligations to issue any securities
in connection with the Anticipated Equity Financing
may terminate only in accordance with Section 3.2
of the Recapitalization Agreement; however, such
termination shall not have any
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impact on the other rights and obligations of the
parties under the Recapitalization Agreement or the
Related Recapitalization Documents, except as
explicitly set forth in Section 3.2 of the
Recapitalization Agreement.
No Offer For purposes of applicable securities laws, this
Term Sheet does not constitute an offer to sell or
the solicitation of an offer to buy any of the
securities described herein.
Binding Agreement This Term Sheet constitutes a binding commitment on
the part of the Company. The obligations of
Investor and Other Investors under this Term Sheet
are subject to the conditions contained herein and
in the Related Recapitalization Documents.
AGREED AND ACCEPTED:
TOUCAN CAPITAL FUND II, LP NORTHWEST
BIOTHERAPEUTICS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
Title: Managing Director Title: President
Date: October 22, 2004 Date: October 22, 2004
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AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET
This AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of December 27, 2004 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 so amended and restated, 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. 3 (the "THIRD
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Third 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 $6.75 million in warrant coverage on the first
$6.75 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 $6.75 million is invested in
Convertible Preferred Stock, the number of warrants issued shall be
exercisable for 67.5 million shares of Convertible Preferred Stock. The
exercise price of such Preferred Stock Warrants shall be the lesser of
$0.10 per share (subject to adjustment for stock splits, stock dividends
and the like) and 35% discount to the average closing price during the
twenty trading days prior to the First Closing; provided, however, that in
no event will the exercise price be less than $.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. The thirteenth bullet in the paragraph entitled "Conditions to Closing"
of the Convertible Preferred Stock term Sheet is hereby deleted in its entirety
and shall not be a
condition precedent to the obligation of any Investor to Purchase Convertible
Preferred Stock from the Company.
3. 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.
4. 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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
2.
The Company and Xxxxxx have executed this 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: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
3.
SECOND AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This SECOND AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of January 26, 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
(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. 4 (the "FOURTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Fourth 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
"Board of Directors:" is hereby amended and restated in its entirety as follows:
"The authorized number of directors shall initially be one (1). The
authorized number of directors may not be increased or decreased without
the consent of the holders of a majority of the shares of Convertible
Preferred Stock. The holders of a majority of the shares of Convertible
Preferred Stock, acting in their sole discretion, may require the Company
to increase the total number of authorized directors at any time following
the first closing of the Convertible Preferred Stock, up to a maximum of
seven (7) directors. Subject to the limitation in the following sentence,
any newly created directorships shall be designated by the holders of a
majority of the shares of Convertible Preferred Stock, acting in their sole
discretion, to be filled by either: (i) an outside director with
significant industry experience, who is reasonably acceptable to the
holders of a majority of the Convertible Preferred Stock, to be elected by
the holders of the Company's Common Stock (which may, subject to applicable
law, the Certificate of Incorporation or the Bylaws, be filled initially by
vote of the remaining director(s)) (a "COMMON DIRECTORSHIP"); or (ii) a
director to be designated by the holders of a majority of the Convertible
Preferred Stock (a "PREFERRED
DIRECTORSHIP"). Notwithstanding the foregoing, no more than four (4)
directorships shall be designated as Preferred Directorships, no more than
two (2) directorships shall be designated as Common Directorships, and one
(1) director shall be the chief executive officer of the Company."
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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
2.
The Company and Xxxxxx have executed this SECOND 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: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
3.
THIRD AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This THIRD AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of April 12, 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
and January 26, 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. 5 (the "FIFTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Fifth 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 $6.3 million in warrant coverage on the first $6.3
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 $6.3 million is invested in Convertible
Preferred Stock, the number of warrants issued shall be exercisable for 63
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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
2.
The Company and Xxxxxx have executed this THIRD 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: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
3.
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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
The Company and Xxxxxx 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
FIFTH AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This FIFTH AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of June 16, 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, April 12, 2005 and May 13, 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. 7 (the "SEVENTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Seventh 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 $5.35 million in warrant coverage on the first
$5.35 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 $5.35 million is invested in
Convertible Preferred Stock, the number of warrants issued shall be
exercisable for 53.5 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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
2.
The Company and Xxxxxx have executed this FIFTH 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
3.
SIXTH AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This SIXTH AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of July 26, 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, April 12, 2005, May 13, 2005 and June 16, 2005 (the
"CONVERTIBLE PREFERRED STOCK TERM SHEET").
1
WHEREAS, concurrently herewith, the Company and its affiliates, if any, and
Toucan and its designees, are entering into Amendment No. 8 (the "EIGHTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Eighth 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
"Subsequent Closings:" is hereby amended by replacing the phrase "12 months
after the First Closing" with "December 31, 2006 (or such later date as is
mutually agreed by the parties hereto)" in the first sentence thereof.
2. 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 $4.85 million in warrant coverage on the first
$4.85 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 $4.85 million is invested in
Convertible Preferred Stock, the number of warrants issued shall be
exercisable for 48.5 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."
3. 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.
4. 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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
2
The Company and Xxxxxx have executed this SIXTH 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
3
SEVENTH AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This SEVENTH AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET
(this "AMENDMENT") is made effective as of September 7, 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, April 12, 2005, May 13, 2005, June 16, 2005 and July 26,
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. 9 (the "NINTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Ninth 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 $4.35 million in warrant coverage on the first
$4.35 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 $4.35 million is invested in
Convertible Preferred Stock, the number of warrants issued shall be
exercisable for 43.5 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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
1
The Company and Xxxxxx have executed this SEVENTH 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
2
EIGHTH AMENDMENT TO AMENDED AND RESTATED BINDING
TERM SHEET
This EIGHTH AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this
"AMENDMENT") is made effective as of November 14, 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, April 12, 2005, May 13, 2005, June 16, 2005, July 26,
2005 and September 7, 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. 10 (the "TENTH
AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by
and between the parties thereto; and
WHEREAS, in connection with the Tenth 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 $3.95 million in warrant coverage on the first
$3.95 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 $3.95 million is invested in
Convertible Preferred Stock, the number of warrants issued shall be
exercisable for 3.95 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.
[REMAINDER OF XXXX LEFT INTENTIONALLY BLANK]
1
The Company and Xxxxxx have executed this EIGHTH 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: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
