EXHIBIT 10.4
EXECUTION VERSION
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
EXECUTION VERSION
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.
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2.
EXECUTION VERSION
The Company and Toucan 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
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Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: President
3.
