EXECUTION VERSION
EXHIBIT 10.1
AMENDMENT NO. 6 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED RECAPITALIZATION
AGREEMENT (this "AMENDMENT") is made and entered into as of May 13, 2005 (the
"SIXTH AMENDMENT DATE") by and between NORTHWEST BIOTHERAPEUTICS, INC., and its
affiliates, if any (collectively, the "COMPANY"), a Delaware corporation with
offices at 00000 00xx Xxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx, 00000, and TOUCAN
CAPITAL FUND II, L.P., and its designees (collectively, "INVESTOR"), a Delaware
limited partnership with offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
All capitalized terms used herein but not otherwise defined shall have the
meaning given such terms in the Agreement (as defined below).
RECITALS
WHEREAS, the Company and Investor have entered into that certain
Amended and Restated Recapitalization Agreement, dated as of July 30, 2004 (the
"AGREEMENT");
WHEREAS, on October 22, 2004, the Company and Investor entered into
Amendment No. 1 to the Agreement;
WHEREAS, on November 10, 2004, the Company and Investor entered into
Amendment No. 2 to the Agreement;
WHEREAS, on December 27, 2004, the Company and Investor entered into
Amendment No. 3 to the Agreement;
WHEREAS, on January 26, 2005, the Company and Investor entered into
Amendment No. 4 to the Agreement;
WHEREAS, on April 12, 2005, the Company and Investor entered into
Amendment No. 5 to the Agreement;
WHEREAS, the Company and Investor desire to further amend the
Agreement to make such changes to the Agreement as are set forth herein; and
WHEREAS, Section 4.13(f) of the Agreement provides that the
Agreement may be amended or modified only by a written instrument signed by the
Company and Investor.
AMENDMENT
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Investor hereby agree as follows:
1. Section 1.2 of the Agreement is hereby amended by inserting "and the Loan
Agreement, Security Agreement and 10% Convertible, Secured Promissory Note dated
May 13, 2005 attached hereto as Exhibit A-10, and the May 13 Bridge Warrant (as
defined herein) in the form attached hereto as Exhibit K-5" immediately
following the phrase "in the form attached hereto as Exhibit K-4" in subsection
(g) thereof.
2. Section 2.2(a) of the Agreement is hereby amended by replacing "A-9" with
"A-10."
3. Section 2.3(b) of the Agreement is hereby amended by adding the following
text immediately following the fifteenth sentence thereof:
"On May 13, 2005 (the "SIXTH AMENDMENT DATE"), Investor is providing an
additional $450,000 of Bridge Funding (the "MAY 13 BRIDGE FUNDING") to
cover general operating expenses and certain other expenses of the Company
agreed in advance by Investor during the period from May 13, 2005 through
June 30, 2005. The May 13 Bridge Funding shall be evidenced by a Note in
the form attached hereto as Exhibit A-
EXECUTION VERSION
10 and shall be provided on the terms and conditions set forth herein. The
May 13 Bridge Funding shall be used only for the purposes and in the
amounts agreed to in writing by Investor and the Company."
4. Section 2.3(b) of the Agreement is hereby further amended by replacing the
phrase "December 27 Bridge Funding or April 00 Xxxxxx Xxxxxxx" with "December 27
Bridge Funding, April 12 Bridge Funding or May 13 Bridge Funding") in the
sixteenth sentence thereof (i.e., the nineteenth sentence thereof after giving
effect to the inclusion of the three new sentences therein per Section 3 of this
Amendment).
5. The Agreement is hereby amended by adding a new Section 2.15, immediately
following Section 2.14 thereof, as follows:
"2.15 May 00 Xxxxxx Xxxxxxx:
(a) Issuance of May 13 Bridge Warrant. On the Sixth Amendment Date,
Investor shall receive a warrant with coverage equal to one hundred
percent (100%) of the principal amount due under the Note evidencing the
May 13 Bridge Funding (the "MAY 00 XXXXXX XXXXXXX"). The Company shall,
therefore, issue $450,000 in warrant coverage on the $450,000 of May 13
Bridge Funding provided on the Sixth Amendment Date. The number of shares
subject to the May 00 Xxxxxx Xxxxxxx to be so issued shall be determined
on the basis of $0.10 per share (subject to adjustment for stock splits,
stock dividends and the like). The total number of shares for which
Investor shall initially be able to exercise the May 13 Bridge Warrant
shall therefore be 4,500,000 shares as of the Sixth Amendment Date.
(b) Exercise of May 13 Bridge Warrant. The May 13 Bridge Warrant
shall be immediately exercisable upon issuance and continue to be
exercisable for a period of seven (7) years after its issuance date. The
exercise price of the May 13 Bridge Warrant shall be $0.04 (subject to
adjustment for stock splits, stock dividends and the like, as provided
more fully in the May 00 Xxxxxx Xxxxxxx). In the event the Convertible
Preferred Stock is approved and authorized, and the terms and conditions
are the same as set forth herein and in the Convertible Preferred Stock
Term Sheet, and Other Investors have purchased in cash (and not by
conversion of debt, exercise of warrants or options, or conversion or
exercise of other securities or instruments) a minimum of $15 million of
such Convertible Preferred Stock, on the terms and conditions set forth
herein and in the Convertible Preferred Stock Term Sheet, then the May 13
Bridge Warrant shall be exercisable solely for such Convertible Preferred
Stock (subject to Section 5 thereof). However, if, for any reason, such
Convertible Preferred Stock is not approved or authorized, and/or is
approved or authorized on any terms different than any terms set forth
herein and in the Convertible Preferred Stock Term Sheet, and/or if Other
Investors have not purchased in cash (and not by conversion of debt,
exercise of warrants or options, or conversion or exercise of other
securities or instruments) a minimum of $15 million of such Convertible
Preferred Stock, on the terms and conditions set forth herein and in the
Convertible Preferred Stock Term Sheet, the May 13 Bridge Warrant shall be
exercisable for any Equity Security and/or Debt Security (each as defined
in Section 2.7 hereof) and/or any combination thereof, in each case that
Investor shall designate in Investor's sole discretion (the securities so
elected being the "INVESTOR DESIGNATED SECURITIES").
(c) No Impairment. The Company shall not, by amendment of its
Charter or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary
action, omission, or agreement, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed by the Company
under and/or in connection with the May 00 Xxxxxx Xxxxxxx, but shall at
all times in good faith use best efforts to assist in carrying out of all
the provisions of and/or relating to such May 00 Xxxxxx Xxxxxxx and in
taking all such action as may be necessary or appropriate to protect
Investor's rights, preferences and privileges under and/or in connection
with the May 00 Xxxxxx Xxxxxxx against impairment. Investor's rights,
preferences and privileges granted under and/or in connection with the May
00 Xxxxxx Xxxxxxx may not be amended, modified or waived without
Investor's prior written consent, and the documentation providing for such
rights, preferences and privileges will specifically provide as such.
(d) Tax Treatment of May 13 Bridge Warrant and Note. The Company and
Investor, as a result of arm's length bargaining, agree that the fair
market value of the Note to be issued in connection with the May 13 Bridge
Funding, if issued apart from the May 00 Xxxxxx Xxxxxxx, is $445,500, and
the fair
EXECUTION VERSION
market value of the May 00 Xxxxxx Xxxxxxx, if issued apart from such Note,
is $4,500. The Company and Investor further agree that all tax filings and
records relating to or including this Agreement, the Note to be issued in
connection with the May 13 Bridge Funding and/or the May 13 Bridge Warrant
shall be prepared on the basis of, and consistently reflect, the agreed
fair market values set forth in this Section 2.15(d), and the Company
shall instruct its accountants and other tax-preparation professionals to
prepare all tax filings and returns on the basis of the foregoing."
6. Section 3.4(b) of the Agreement is hereby amended by:
(A) replacing "$6.3 million" with "$5.85 million" in the first
sentence thereof; and
(B) replacing " "63,000,000" with "58,500,000" in the third sentence
thereof.
7. Section 4.7.6 of the Agreement is hereby amended and restated in its entirety
as follows:
"4.7.6. Capitalization. The authorized capital stock of the Company
consists of 300,000,000 shares of Common Stock, par value $0.001 per share
and 100,000,000 shares of Preferred Stock, par value of $0.001 per share.
As of the date hereof, 19,078,048 shares of Common Stock and 32,500,000
shares of series A preferred stock are issued and outstanding. No other
shares of any class or series of the Company's capital stock are
authorized and/or issued and outstanding. All issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued, and are fully paid and non-assessable, and have been
offered, sold and delivered by the Company in compliance with all
applicable federal and state securities laws. Except as set forth in
Schedule 4.7.6, no subscription, warrant, option, convertible security, or
other right (direct or indirect, contingent or otherwise) to purchase or
otherwise acquire any equity securities of the Company is authorized or
outstanding, and there is no agreement, promise, commitment, undertaking
or letter of intent of any kind (direct or indirect, contingent or
otherwise) by the Company to issue any shares, subscriptions, warrants,
options, convertible securities, or other such rights, or to distribute to
holders of any of its equity securities any evidence of indebtedness or
asset. Except as set forth in Schedule 4.7.6, the Company has no
obligation of any kind (direct or indirect, contingent or otherwise) to
purchase, redeem or otherwise acquire any of its equity securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof. Schedule 4.7.6 includes a true, accurate and complete
statement describing the total number of shares of the Company outstanding
as of the date of this Agreement (on a fully diluted basis, including,
without limitation, all warrants and options outstanding (whether or not
currently exercisable), all convertible instruments of any kind (whether
or not currently convertible), shares of all classes of stock, and any
agreements, promises, commitments, undertakings or letters of intent to
issue any of the foregoing."
8. Section 4.7.15 of the Agreement is hereby amended and restated in its
entirety as follows:
"4.7.15 Liabilities. The Company has the following accrued
liabilities: (i) tax liabilities to the State of Washington in the maximum
amount of $503,000, (ii) amounts payable to Cognate Therapeutics and (iii)
future sublease payments to MediQuest Corporation for the Company's
premises sublease not yet due, and a contingent lease liability to
Benaroya Capital Co. LLC for premises currently occupied by MediQuest
Corporation should Mediquest Corporation default on its lease with
Benaroya Capital Co. LLC and which is not yet due, (iv) the Company's
aggregate accrued, contingent and/or other liabilities of any nature,
either mature or immature, as of the Sixth Amendment Date, do not exceed
$474,539 (excluding amounts payable to Cognate), of which (x) $355,963 are
currently due payables (including $347,629 for attorney and auditor fees),
(y) $39,360 are the aggregate balances of capital leases payable in
monthly installments in the amounts set forth in the budget included in
the Schedule of Exceptions through the first calendar quarter of 2006,
decreasing thereafter, the last of which is fully amortized in May 2007,
and (z) $79,216 are accrued vacation and sick pay."
9. The Agreement is hereby amended by adding new Exhibit A-10, immediately
following Exhibit A-9 thereto, in the form attached as Exhibit A-10 hereto.
EXECUTION VERSION
10. Exhibit B to the Agreement, as amended on December 27, 2004, January 26,
2005, and April 12, 2005 is hereby further amended by Exhibit B-4 hereto (the
"FOURTH AMENDMENT TO THE AMENDED AND RESTATED CONVERTIBLE PREFERRED STOCK TERM
SHEET"). Exhibit B, as so amended, shall be deemed to constitute the
"CONVERTIBLE PREFERRED STOCK TERM SHEET" for all purposes under the Agreement
and all other Related Recapitalization Documents.
11. The Agreement is hereby amended by adding new Exhibit K-5, immediately
following Exhibit K-4 thereto, in the form attached as Exhibit K-5 hereto.
12. The May 13 Bridge Warrant in the form attached hereto as Exhibit K-5 shall
be deemed to be a "BRIDGE WARRANT" and a "WARRANT" for all purposes under the
Agreement and any Related Recapitalization Document. The Note evidencing the May
13 Bridge Funding in the form attached hereto as Exhibit A-10 issued on the
Sixth Amendment Date shall be deemed to be a "NOTE" for all purposes under the
Agreement and any Related Recapitalization Document. Each of the May 13 Bridge
Warrant and the Note evidencing the May 13 Bridge Funding shall be deemed to be
"RELATED RECAPITALIZATION DOCUMENTS" for all purposes under the Agreement and
all other Related Recapitalization Documents.
13. Except as amended and/or restated hereby, all other terms and conditions of
the Agreement shall be unaffected hereby and remain in full force and effect.
14. This Amendment (including the Exhibits hereto, which are an integral part of
the Amendment), together with the Agreement (including the Schedules and
Exhibits thereto, which are an integral part of the Agreement) and the Related
Recapitalization Documents, constitute the entire agreement among the parties
hereto and thereto with regard to the subjects hereof and thereof and supersede
all prior agreements and understandings relating to the subject matter hereof
and thereof.
15. This Amendment shall be governed by and construed under the laws of the
State of Delaware, without regard to its conflicts of law provisions.
16. This Amendment may be executed in one or more counterparts, each of which
will be deemed an original but all of which together shall constitute one and
the same agreement.
17. This Amendment shall take effect immediately upon execution by the Company
and Investor.
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EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 6 TO
AMENDED AND RESTATED RECAPITALIZATION AGREEMENT as of the Sixth Amendment Date
above written.
NORTHWEST BIOTHERAPEUTICS, INC.
By:
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
TOUCAN CAPITAL FUND II, LP
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
EXHIBIT A-10
FORM OF $450,000 LOAN AGREEMENT, SECURITY AGREEMENT AND 10% CONVERTIBLE, SECURED
PROMISSORY NOTE DATED MAY 13, 2005
EXECUTION VERSION
EXHIBIT B-4
FORM OF FOURTH AMENDMENT TO AMENDED AND RESTATED CONVERTIBLE PREFERRED
STOCK TERM SHEET
EXECUTION VERSION
EXHIBIT K-5
FORM OF MAY 13 BRIDGE WARRANT
WAIVER AGREEMENT
The undersigned, Toucan Capital Fund II, L.P. ("Toucan") is a party
to that certain Northwest Biotherapeutics Amended and Restated Recapitalization
Agreement with Northwest Biotherapeutics, Inc. (the "Company"), dated July 30,
2004, as amended on October 22, 2004, November 10, 2004, December 27, 2004,
January 26, 2005, April 12, 2005 and May 13, 2005 (the "Recapitalization
Agreement").
WHEREAS, The Company is not able to fulfill certain of the
conditions set forth in Sections 2.4 and 4.9 of the Recapitalization Agreement
and Toucan is willing to allow limited waivers of certain of the conditions
solely in connection with the closing of the bridge funding on May 13, 2005 (the
"May 13 Bridge Funding").
Toucan hereby waives the following conditions and relinquishes the
Company from complying with such conditions solely in connection with and as
applicable to the closing of the May 13 Bridge Funding:
1. The conditions set forth in Section 2.4 (a) and (g) to the extent they relate
to Related Recapitalization Documents that have not been executed by the
Company.
2. The conditions set forth in Section 2.4 (k) as to Xxx Xxxxx.
3. The conditions set forth in Section 4.9 (a), (b), (d), and (e) to the extent
they relate to Related Recapitalization Documents that have not been executed by
the Company.
The waiver of the foregoing conditions in connection with the May 13 Bridge
Funding shall apply only to the May 13 Bridge Funding and shall not be deemed to
be a waiver of any condition or conditions as to any future closing or closings
of the Bridge Funding, if any, or the Anticipated Equity Financing, if any.
Capitalized terms used, but not otherwise defined herein shall have the meaning
ascribed to them in the Recapitalization Agreement.
DATED: May 13, 2005. TOUCAN CAPITAL FUND II, L.P.
By: _____________________________
Xxxxx X. Xxxxxx
Its: Managing Director
