EXHIBIT 10.27
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
THIS WARRANT SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME ON NOVEMBER ___,
2008 (the "EXPIRATION DATE").
No. __________
NORTHWEST BIOTHERAPEUTICS, INC.
WARRANT TO PURCHASE COMMON SHARES
For VALUE RECEIVED, ____________________ ("Warrantholder"), is entitled to
purchase, subject to the provisions of this Warrant, from Northwest
Biotherapeutics, Inc., a Delaware corporation ("Company"), at any time not later
than 5:00 P.M., Seattle time, on the Expiration Date (as defined above), at an
exercise price per share equal to $0.__ [Insert closing price on date of
closing] (the exercise price in effect being herein called the "Warrant Price"),
______ shares ("Warrant Shares") of the Company's Common Stock, par value $0.001
per share ("Common Stock"). The number of Warrant Shares purchasable upon
exercise of this Warrant and the Warrant Price shall be subject to adjustment
from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the transfer
and registration of the Warrant. Upon the initial issuance of this Warrant, the
Company shall issue and register the Warrant in the name of the Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be transferred
only pursuant to a registration statement filed under the Securities Act of
1933, as amended ("Securities Act"), or an exemption from such registration.
Subject to such restrictions, the Company shall transfer this Warrant from time
to time upon the books to be maintained by the Company for that purpose, upon
surrender thereof for transfer properly endorsed or accompanied by appropriate
instructions for transfer and such other documents as may be reasonably required
by the Company, including, if required by the Company, an opinion of its counsel
to the effect that such transfer is exempt from the registration requirements of
the Securities Act, to establish that such transfer is being made in accordance
with the terms hereof, and a new Warrant shall be issued to the transferee and
the surrendered Warrant shall be canceled by the Company.
Section 3. Exercise.
(a) Manner of Exercise. This Warrant may be exercised at any time or
from time to time, on any business day, for all or part of the full number of
Warrant Shares during the period of time described above, by surrendering it at
the principal office of the Company at 00000 00xx Xxxxxx XX, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000, with the subscription form in the form attached hereto duly
executed, together with payment for the Warrant Shares to be purchased, payable
in cash, cashier's check and/or wire transfer of immediately available funds.
Subject to Section 3(b) below, no other form of consideration shall be
acceptable for the exercise of this Warrant. A Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise together with delivery of payment therefor as provided
above, and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the record holder of
such shares as of the close of business on such date. As soon as practicable on
or after such date, and in any event within 20 days thereof, the Company shall
issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of shares of Common Stock issuable
upon such exercise. Upon any partial exercise, the Company will issue and
deliver to Holder a new Warrant with respect to the Warrant Shares not
previously purchased. No fractional shares of Common Stock shall be issued upon
exercise of a Warrant. In lieu of any fractional share to which Holder would be
entitled upon exercise, the Company shall pay cash equal to the product of such
fraction multiplied by the then current fair market value of one share of Common
Stock, as determined in good faith by the Company.
(b) Net Exercise. In lieu of cash exercising this Warrant, Holder may
elect to receive Common Stock equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event the Company
shall issue to the Holder hereof a number of shares of Common Stock computed
using the following formula:
Y (A - B)
X = ---------
A
Where:
X = The number of shares of Common Stock to be issued to the Holder.
Y = The number of shares of Common Stock purchasable under this Warrant.
A = The then current Market Price of one share of the Company's Common
Stock at the time of exercise.
B = The Exercise Price (as adjusted to the date of such calculations).
For purposes of this Section 3(b), the Market Price shall be
determined in accordance with the provisions of Section 8(b)
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Section 4. Compliance with the Securities Act of 1933. The Company may
cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's reasonable satisfaction that such tax
has been paid. The holder shall be responsible for income taxes due under
federal, state or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents and
warrants that there have been reserved, and the Company shall at all applicable
times keep reserved until issued (if necessary) as contemplated by this Section
7, out of the authorized and unissued shares of Common Stock, sufficient shares
to provide for the exercise of the rights of purchase represented by this
Warrant. The Company agrees that all Warrant Shares issued upon due exercise of
the Warrant shall be, at the time of delivery of the certificates for such
Warrant Shares, duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares or issue by reclassification of its
outstanding shares of Common Stock any shares of its capital stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then the number of Warrant Shares
purchasable upon
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exercise of the Warrant and the Warrant Price in effect immediately prior to the
date upon which such change shall become effective, shall be adjusted by the
Company so that the Warrantholder thereafter exercising the Warrant shall be
entitled to receive the number of shares of Common Stock or other capital stock
which the Warrantholder would have received if the Warrant had been exercised
immediately prior to such event upon payment of a Warrant Price that has been
adjusted to reflect a fair allocation of the economics of such event to the
Warrantholder. Such adjustments shall be made successively whenever any event
listed above shall occur.
(b) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends or distributions referred to in Section 8(a)), or
subscription rights or warrants, the Warrant Price to be in effect after such
payment date shall be determined by multiplying the Warrant Price in effect
immediately prior to such payment date by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding multiplied by
the Market Price (as defined below) per share of Common Stock immediately prior
to such payment date, less the fair market value (as determined by the Company's
Board of Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the denominator of
which shall be the total number of shares of Common Stock outstanding multiplied
by such Market Price per share of Common Stock immediately prior to such payment
date. "Market Price" as of a particular date (the "Valuation Date") shall mean
the following: (a) if the Common Stock is then listed on a national stock
exchange, the closing sale price of one share of Common Stock on such exchange
on the last trading day prior to the Valuation Date; (b) if the Common Stock is
then quoted on The Nasdaq Stock Market, Inc. ("Nasdaq"), the closing sale price
of one share of Common Stock on Nasdaq on the last trading day prior to the
Valuation Date or, if no such closing sale price is available, the average of
the high bid and the low asked price quoted on Nasdaq on the last trading day
prior to the Valuation Date; (c) if the Common Stock is not then listed on a
national stock exchange or quoted on Nasdaq, the average of the high bid and the
low ask price quoted on the OTC Bulletin Board on the last trading day prior to
the Valuation Date; or (d) if the Common Stock is not then listed on a national
stock exchange or quoted on Nasdaq or the OTC Bulletin Board, the fair market
value of one share of Common Stock as of the Valuation Date, shall be determined
in good faith by the Board of Directors of the Company. Such adjustment shall be
made successively whenever such a payment date is fixed.
(c) In the event that, as a result of an adjustment made pursuant to
this Section 8, the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, the
number of such other shares so receivable upon exercise of this Warrant shall be
subject thereafter to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Warrant
Shares contained in this Warrant.
(d) Except as provided in subsection (e) of this Section 8, if and
whenever the Company shall issue or sell, or is, in accordance with any of
subsections (d)(l) through (d)(6)
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hereof, deemed to have issued or sold, any shares of Common Stock for no
consideration or for a consideration per share less than the Warrant Price in
effect immediately prior to the time of such issue or sale, then and in each
such case (a "Trigger Issuance") the then-existing Warrant Price, shall be
reduced, as of the close of business on the effective date of the Trigger
Issuance, to the lowest price per share at which any share of Common Stock was
issued or sold or deemed to be issued or sold.
For purposes of this subsection (d), "Additional Shares of Common
Stock" shall mean all shares of Common Stock issued by the Company or deemed to
be issued pursuant to this subsection (d), other than Excluded Issuances (as
defined in subsection (e) hereof).
For purposes of this subsection (d), the following subsections (d)(l)
to (d)(6) shall also be applicable:
(d)(1) Issuance of Rights or Options. In case at any time during
the term of this Warrant the Company shall in any manner grant
(directly and not by assumption in a merger or otherwise) any warrants
or other rights to subscribe for or to purchase, or any options for
the purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights or
options being called "Options" and such convertible or exchangeable
stock or securities being called "Convertible Securities") whether or
not such Options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per
share for which Common Stock is issuable upon the exercise of such
Options or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the sum (which sum shall
constitute the applicable consideration) of (x) the total amount, if
any, received or receivable by the Company as consideration for the
granting of such Options, plus (y) the aggregate amount of additional
consideration payable to the Company upon the exercise of all such
Options, plus (z), in the case of such Options which relate to
Convertible Securities, the aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such
Options) shall be less than the Warrant Price in effect immediately
prior to the time of the granting of such Options, then the total
number of shares of Common Stock issuable upon the exercise of such
Options or upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such Options
shall be deemed to have been issued for such price per share as of the
date of granting of such Options or the issuance of such Convertible
Securities and thereafter shall be deemed to be outstanding for
purposes of adjusting the Warrant Price. Except as otherwise provided
in subsection 8(d)(3), no adjustment of the Warrant Price shall be
made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual
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issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
(d)(2) Issuance of Convertible Securities. In case the Company
shall during the term of this Warrant in any manner issue (directly
and not by assumption in a merger or otherwise) or sell any securities
convertible into Common Stock, whether or not the rights to exchange
or convert any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange (determined by dividing (i)
the sum (which sum shall constitute the applicable consideration) of
(x) the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities,
plus (y) the aggregate amount of additional consideration, if any,
payable to the Company upon the conversion or exchange thereof, by
(ii) the total number of shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities) shall be
less than the Warrant Price in effect immediately prior to the time of
such issue or sale, then the total maximum number of shares of Common
Stock issuable upon conversion or exchange of all such Convertible
Securities shall be deemed to have been issued for such price per
share as of the date of the issue or sale of such Convertible
Securities and thereafter shall be deemed to be outstanding for
purposes of adjusting the Warrant Price, provided that (a) except as
otherwise provided in subsection 8(d)(3), no adjustment of the Warrant
Price shall be made upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities and (b) no
further adjustment of the Warrant Price shall be made by reason of the
issue or sale of Convertible Securities upon exercise of any Options
to purchase any such Convertible Securities for which adjustments of
the Warrant Price have been made pursuant to the other provisions of
subsection 8(d).
(d)(3) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the purchase
price provided for in any Option referred to in subsection 8(d)(l)
hereof, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subsections 8(d)(l) or 8(d)(2), or the rate at which Convertible
Securities referred to in subsections 8(d)(l) or 8(d)(2) are
convertible into or exchangeable for Common Stock shall change at any
time (including, but not limited to, changes under or by reason of
provisions designed to protect against dilution), the Warrant Price in
effect at the time of such event shall forthwith be readjusted to the
Warrant Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate,
as the case may be, at the time initially granted, issued or sold. On
the termination of any Option for which any adjustment was made
pursuant to this subsection 8(d) or any right to convert or exchange
Convertible Securities for which any adjustment was made pursuant to
this subsection 8(d) (including without limitation upon the redemption
or purchase for consideration of such Convertible Securities by the
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Company), the Warrant Price then in effect hereunder shall forthwith
be changed to the Warrant Price which would have been in effect at the
time of such termination had such Option or Convertible Securities, to
the extent outstanding immediately prior to such termination, never
been issued.
(d)(4) Stock Dividends. Subject to the provisions of this Section
8(d), in case the Company shall during the term of this Warrant
declare a dividend or make any other distribution upon any stock of
the Company (other than the Common Stock) payable in Common Stock,
Options or Convertible Securities, then any Common Stock, Options or
Convertible Securities, as the case may be, issuable in payment of
such dividend or distribution shall be deemed to have been issued or
sold without consideration.
(d)(5) Record Date. In case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in Common Stock,
Options or Convertible Securities or (ii) to subscribe for or purchase
Common Stock, Options or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase, as the case
may be.
(d)(6) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Company or any of its wholly-owned
subsidiaries, and the disposition of any such shares (other than the
cancellation or retirement thereof) shall be considered an issue or
sale of Common Stock for the purpose of this subsection (d).
(e) Anything herein to the contrary notwithstanding, the Company shall
not be required to make any adjustment of the Warrant Price in the case of the
issuance of (A) capital stock, Options or Convertible Securities issued to
directors, officers, employees or consultants of the Company in connection with
their service as directors of the Company, their employment by the Company or
their retention as consultants by the Company pursuant to an equity compensation
program approved by the Board of Directors of the Company or the compensation
committee of the Board of Directors of the Company, (B) shares of Common Stock
issued upon the conversion or exercise of Options or Convertible Securities
issued prior to the date hereof, (C) shares of Common Stock issued upon the
conversion of the secured promissory notes, dated as of the date of the initial
issuance of this Warrant, in an aggregate principal amount of $_______________
(the "Notes"), (D) shares of Common Stock issued upon the exercise of this
Warrant and the other warrants issued in connection with the issuance of the
Notes and initially covering an aggregate of ___________ shares of Common Stock
(collectively, the "Company Warrants"), and (E) shares of Common Stock issued or
issuable by reason of a dividend, stock split or other distribution on shares of
Common Stock (but only to the extent that such a
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dividend, split or distribution results in an adjustment in the Warrant Price
pursuant to the other provisions of this Warrant) (collectively, "Excluded
Issuances").
(f) Upon any adjustment to the Warrant Price pursuant to Section 8(d)
above, the number of Warrant Shares purchasable hereunder shall be adjusted by
multiplying such number by a fraction, the numerator of which shall be the
Warrant Price in effect immediately prior to such adjustment and the denominator
of which shall be the Warrant Price in effect immediately thereafter.
Section 9. Conversion. The Company shall deliver to the Holder notice of
any merger, consolidation, acquisition of all or substantially all of the
property or stock, reorganization or liquidation of the Company (collectively a
"Reorganization"), as a result of which the stockholders of the Company are to
receive cash, stock or other property in exchange for Common Stock, no less than
twenty (20) business days before the date scheduled for the Reorganization.
Unless the Holder exercises this Warrant as provided in Section 3(a) prior to
the date of the Reorganization, this Warrant shall be automatically converted as
provided in Section 3(b) upon the effective date of the Reorganization.
Section 10. Fractional Interest. The Company shall not be required to issue
fractions of Warrant Shares upon the exercise of this Warrant. If any fractional
share of Common Stock would, except for the provisions of the first sentence of
this Section 10, be deliverable upon such exercise, the Company, in lieu of
delivering such fractional share, shall pay to the exercising holder of this
Warrant an amount in cash equal to the Market Price of such fractional share of
Common Stock on the date of exercise.
Section 11. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment.
Section 13. Identity of Transfer Agent. The Transfer Agent for the Common
Stock is Mellon Investor Services LLC. Upon the appointment of any subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant, the Company will mail to the Warrantholder a statement setting forth
the name and address of such transfer agent.
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Section 14. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Northwest Biotherapeutics, Inc.
00000 00xx Xxxxxx X.X., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: _____ ________
With a copy to:
Xxxx Xxxxxx Spears Lubersky LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Section 15. Successors. All the covenants and provisions hereof by or for
the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 16. Applicable Law; Dispute Resolution; Exclusive Procedure.
(a) Governing Law.
This Subscription Agreement and all rights hereunder shall be governed by,
and interpreted in accordance with, the laws of the State of Washington.
(b) Dispute Resolution; Exclusive Procedure.
(1) Exclusive Procedure. Every controversy, claim, dispute or
disagreement arising with respect to the formation, interpretation, performance,
or breach of this Agreement, or any amendment hereto, (any "Dispute") will be
resolved in accordance with this
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Section 16(b), which sets forth the sole and exclusive procedure for the
resolution of any Dispute.
(2) Injunctive Relief. Notwithstanding anything herein to the
contrary, the Company or the Warrantholder may, prior to invoking the procedure
called for in this Section 16(b), seek a temporary restraining order or a
preliminary injunction (an "Injunctive Action") pursuant to this paragraph. The
Superior Court of the State of Washington in King County shall be the exclusive
venue and have exclusive jurisdiction for all such Injunctive Actions. The
Warrantholder and the Company stipulate and agree for the purposes of any
Injunctive Action that all real and personal property of the Company and the
Warrantholder relevant to such Injunctive Action will be deemed to be within the
jurisdiction of the Superior Court of the State of Washington in King County.
Other than the foregoing stipulation regarding matters and property subject to
Injunctive Action, any party bringing an Injunctive Action pursuant to this
agreement must make a showing of the requisites for such Injunctive Action in
such court. This provision for Injunctive Actions is the sole and exclusive
process by which any party shall maintain any Injunctive Action, and shall be
limited to those cases in which emergency access to the court is necessary to
prevent immediate and irreparable harm in the interim period until the agreed
upon dispute resolution provisions of this Section 16(b) can be carried out.
(3) Negotiation. The Warrantholder or the Company, seeking
resolution of a Dispute, must request in writing that a good faith negotiation
("Negotiation Effort") be carried on following any request for a Negotiation
Effort, the Company and the Warrantholder shall negotiate in good faith for a
period of thirty (30) days (the "Negotiation Period"). The Negotiation Effort
may be conducted in person, by telephone, or by such other means as the
Designated Representatives agree will tend to lead toward an amicable resolution
of the Dispute. Should a Negotiation Effort fail to produce a resolution within
the Negotiation Period, the parties may agree to extend the Negotiation Period
for a fixed time if each agrees that such an extension could reasonably lead to
an amicable resolution.
(4) Mediation. Should a Negotiation Effort fail to produce a
resolution within the Negotiation Period and any extension thereof, then either
the Warrantholder or the Company, if wishing to further pursue resolution of the
Dispute, must initiate mediation by providing to Judicial Arbitration Mediation
Services ("JAMS"), or its successor, in Seattle, Washington and to the other
party a written request for mediation pursuant to this Section, setting forth
the subject of the Dispute and the relief requested within fifteen (15) days of
the end of the Negotiation Period and any extension thereof. A mediation (the
"Mediation") shall be conducted pursuant to the mediation procedures contained
in the then published Commercial Arbitration Rules and Mediation Procedures of
the American Arbitration Association ("AAA"). The Designated Representatives
shall cooperate with JAMS and with one another in selecting a mediator from
JAMS' panel of neutrals, but if the parties cannot agree on a mediator within
seven (7) days from the date of the request for mediation then the parties shall
each select a designee from among the JAMS panel of neutrals, and those
designees shall in turn select, from among the JAMS panel of neutrals, the
single mediator who shall conduct the mediation (the "Mediator"). The Mediator
shall have experience with corporate law. The Mediation will be conducted within
forty-five (45) days of the expiration of the Negotiation Period and any
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extension thereof unless otherwise agreed by the parties (the "Mediation
Period"). The Mediator may conduct meetings or hearings in Seattle, Washington,
or by telephone or teleconference, and request information from the parties as
he or she deems necessary, and shall, if the matter remains unresolved through
such mediation, issue written recommendations to the parties within fifteen (15)
days of the end of the Mediation Period. The parties shall then confer and
determine, within seven (7) days of the issuance of the mediator's written
recommendations, whether the mediator's recommendations are agreeable to the
Company and the Warrantholder. Each party shall bear its own costs of the
Mediation, and the mediator's fee shall be divided evenly between the
Warrantholder and the Company. The parties agree that Federal and State Evidence
Rule 408 shall apply to all statements, information and documents exchanged or
discussed as part of the negotiation or mediation processes herein in any
arbitration or litigation proceeding involving the parties, provided that
evidence that is otherwise admissible or discoverable will not be rendered
inadmissible or non-discoverable as a result of its use in the Negotiation
Effort or Mediation.
(5) Binding Arbitration.
(i) If after the mediation procedures called for in this
Section 16(b), the Dispute remains unresolved, either party, if wishing to
further pursue a resolution of the Dispute, must initiate binding arbitration,
before a single arbitrator, by providing to JAMS, or its successor, in Seattle,
Washington and to the other party a written request for binding arbitration
pursuant to this Section, setting forth the subject of the Dispute and the
relief requested within thirty (30) days of the expiration of the seven day
period following the issuance of the Mediator's written recommendations.
(ii) The parties shall then cooperate with JAMS and with one
another in selecting an arbitrator from JAMS' panel of neutrals, but if the
parties cannot agree on an arbitrator within seven (7) days, then each party
shall select a designee from among the JAMS panel of neutrals, and those
designees shall in turn select, from among the JAMS panel of neutrals, the
single arbitrator who shall hear the matter in arbitration (the "Arbitrator").
The Arbitrator shall have experience with corporate law.
(iii) The arbitration shall be conducted in Seattle,
Washington under the arbitration rules contained in the then published
Commercial Arbitration Rules and Mediation Procedures of the AAA, except as such
are inconsistent with the explicit provisions herein (the "Arbitration"). The
arbitration hearing shall be conducted within thirty (30) days of the
appointment of the Arbitrator unless otherwise agreed by the parties (the
"Arbitration Period").
(iv) The Arbitrator shall have full discretion to regulate
discovery so as to provide for prompt, efficient, and fair resolution of the
claims, disputes and matters in question; consistent with this and the timelines
above, discovery may be had by either party pursuant to the provisions of the
Federal Rules of Civil Procedure. During the conduct of the arbitration
proceedings, the Arbitrator shall have full discretion concerning the
admissibility and relevance of evidence, being guided in exercising such
discretion by the principles set out in
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the Federal Rules of Evidence rather than any other body of evidentiary law as
defined by state common law, codes or rules of evidence.
(v) The Arbitrator shall, within thirty (30) days following
the close of the Arbitration Period, issue an award that shall be binding upon
the parties and judgment on the award may be entered in any court of appropriate
jurisdiction. The arbitration award must be in writing and must explain the
reasons for the decision. The Arbitrator may, but will not be bound to, make
findings of fact or conclusions of law. Each party shall bear its own costs in
such arbitration, and the Arbitrator's fee shall be divided evenly between the
Company and the Warrantholder.
(6) Interim Payment of Fees and Expenses. The Company and the
Warrantholder agree and understand that during any mediation or arbitration
conducted pursuant to this Section 16(b), JAMS may, from time to time, assess
each party for its share of JAMS' fees and expenses and the fees and expenses of
the Mediator or Arbitrator; it is also understood that JAMS will likely make
such requests for payment in advance of the various stages of the proceedings
conducted by the Mediator or Arbitrator. If any such request for fees and
expenses is not honored promptly by a party (a "Default"), and such Default
results in the delay or postponement of any scheduled activities (e.g.,
discovery, pre-hearing conferences, hearings, etc.), then (i) if during
mediation, at the written election of any party not in Default the Mediation
Period may be deemed to be terminated immediately, and (ii) if during
arbitration the Arbitrator may receive submissions from the parties and factual
information from JAMS about amounts due and owing by the parties. Upon
consideration thereof, the Arbitrator is authorized to issue written conclusions
that the Default constitutes a breach by the defaulting party of its obligation
to arbitrate in good faith and to issue an award of sanctions (up to and
including entry of a default judgment) against such party based on that
conclusion (a "Default Award"). Any Default Award shall be binding upon the
parties as an independent final arbitration award on the issue of that Default
and judgment on the award may be entered in any court of appropriate
jurisdiction. In the case of an arbitration proceeding, the non-defaulting party
may elect to proceed with arbitration under the relevant procedures contained in
the then published Commercial Arbitration Rules and Mediation Procedures of the
AAA for conducting arbitration in the absence of a party or representative.
(7) Confidentiality. The negotiation, mediation and arbitration
proceedings will be private and confidential. The parties shall not disclose the
pleading, discovery materials, transcripts, testimony, documents or other
information created, produced or presented in the negotiation, mediation or
arbitration to the press, the public or to any third person, except to legal
counsel and their employees, experts and others who need to know such
information in order to assist in the presentation of or participation in
negotiation, mediation or arbitration, without written consent of the other
parties or order of the Arbitrator. Nothing in this provision shall be deemed to
restrict a party's use or disclosure of documents (i) which are its own, (ii)
which are or have been lawfully obtained independent of discovery in the
negotiations, mediation, or arbitration, (iii) which are or become generally
available to the public through no act of the receiving party, (iv) which have
been lawfully obtained from a source other than the other party, (v) which are
reasonably necessary to be disclosed in connection with a proceeding
-12-
or lawsuit contemplated by this Section 16(b), or (vi) which are required to be
disclosed by law, court order or subpoena. The Arbitrator may impose such
sanctions as are deemed by the Arbitrator to be appropriate for violation of
this provision.
Section 17. Call Provision. Notwithstanding any other provision contained
herein to the contrary, in the event that (i) the closing bid price of a share
of Common Stock as traded on Nasdaq (or such other exchange, stock market or
quotation service on which the Common Stock may then be primarily listed or
quoted) equals or exceeds $1.25 (appropriately adjusted for any stock split,
reverse stock split, stock dividend or other reclassification or combination of
the Common Stock occurring after the date hereof) for twenty (20) consecutive
trading days; or (ii) holders of at least 50% of the aggregate Warrant shares of
this series elect to voluntarily exercise or convert such Warrant share to
common stock pursuant to the procedures set forth in Section 3, the Company,
upon thirty (30) days prior written notice (the "Notice Period") given to the
Warrantholder immediately following such twenty (20) trading day period, may
demand that the Warrantholder exercise its rights hereunder, and the
Warrantholder must exercise its rights prior to the expiration of the Notice
Period or if such exercise is not made or if only a partial exercise is made,
any and all rights to further exercise rights hereunder shall cease upon the
expiration of the Notice Period; provided, however, that the Company
simultaneously calls all Warrants of this series on the same terms.
Section 18. Registration Rights. In the event that the Company, during the
term of this Warrant, engages in a Qualifying Financing, as such term is defined
in the secured convertible promissory note dated of even date herewith, and
investors purchasing such Qualifying Financing receive registration rights with
respect to securities purchased in that financing, then the Warrantholder shall
be entitled to registration rights with respect to the shares receivable under
this Warrant, such rights to be not less favorable to the Warrantholder than
those afforded to investors in the Qualifying Financing.
Section 19. No Rights as Stockholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
stockholder of the Company by virtue of its ownership of this Warrant.
Section 20. Amendment; Waiver. Any term of this Warrant may be amended or
waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 50% of the number of shares of Common Stock then
subject to all outstanding Warrants of this series (the "Majority Holders");
provided, that (x) any such amendment or waiver must apply to all Company
Warrants; and (y) the number of Warrant Shares subject to this Warrant, the
Warrant Price and the Expiration Date may not be amended, and the right to
exercise this Warrant may not be altered or waived, without the written consent
of the Warrantholder.
Section 21. Section Headings. The section headings in this Warrant are for
the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
-13-
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed, as of the ______ day of November 2003.
NORTHWEST BIOTHERAPEUTICS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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APPENDIX A
NORTHWEST BIOTHERAPEUTICS, INC.
WARRANT EXERCISE FORM
To: Northwest Biotherapeutics, Inc.:
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant ("Warrant") for, and to purchase thereunder by
the payment of the Warrant Price and surrender of the Warrant, _______________
shares of Common Stock ("Warrant Shares") provided for therein, and requests
that certificates for the Warrant Shares be issued as follows:
_____________________________________
Name
_____________________________________
Address
_____________________________________
_____________________________________
Federal Tax ID or Social Security No.
and delivered by (certified mail to the above address, or (electronically
(provide DWAC instructions:___________________), or (other (specify):
______________________________), and, if the number of Warrant Shares shall not
be all the Warrant Shares purchasable upon exercise of the Warrant, that a new
Warrant for the balance of the Warrant Shares purchasable upon exercise of this
Warrant be registered in the name of the undersigned Warrantholder or the
undersigned's Assignee as below indicated and delivered to the address stated
below.
Dated: ___________________, ____
Note: The signature must correspond Signature:
with the name of the registered -----------------------------
holder as written on the first page
of the Warrant in every particular, ----------------------------------------
without alteration or enlargement or Name (please print)
any change whatever, unless the
Warrant has been assigned. ----------------------------------------
----------------------------------------
Address
----------------------------------------
Federal Identification or
Social Security No.
Assignee:
----------------------------------------
----------------------------------------
----------------------------------------
FIRST AMENDMENT TO
WARRANTS TO PURCHASE COMMON SHARES
THIS FIRST AMENDMENT TO WARRANTS TO PURCHASE COMMON SHARES (the
"AMENDMENT") is made and entered into as of April 25, 2004, by and among
NORTHWEST BIOTHERAPEUTICS, INC., a Delaware corporation (the "COMPANY"), and the
undersigned holders of Warrants (as defined below) to acquire shares of the
Company's common stock (each a "WARRANTHOLDER" and, collectively, the
"WARRANTHOLDERS"). When signed by the holders of at least 50% of the common
stock subject to Warrants (as defined below) this Amendment will amend each of
the Warrants.
RECITALS
WHEREAS, the Company and the undersigned Warrantholder(s) desire to amend
all of the Company Warrants to Purchase Common Shares, of series Nos. BR-1
through BR-5, each dated as of November 13, 2003 (each, a "WARRANT" and,
collectively, the "WARRANTS"), as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Section 8(a) of each Warrant is hereby amended and restated in its entirety
as follows:
"(a) In the event of changes in the Common Stock by reason of stock
dividends, splits, recapitalizations, reclassifications, combinations or
exchanges of shares, separations, reorganizations, liquidations, or the
like, the number and class of Warrant Shares available under this Warrant
in the aggregate and the Warrant Price shall be correspondingly adjusted to
give the Warrantholder, on exercise for the same Aggregate Warrant Price,
the total number, class, and kind of shares as the Warrantholder would have
owned had this Warrant been exercised prior to the event and had the
Warrantolder continued to hold such shares until after the event requiring
adjustment. Notwithstanding the foregoing, no adjustment to the number of
Warrant Shares or the Warrant Price shall be made in the event of an
issuance or deemed issuance of securities for consideration below the then
current Warrant Price pursuant to this Section 8(a). For purposes of this
Section 8(a), the "AGGREGATE WARRANT PRICE" shall mean the aggregate
Warrant Price payable in connection with the exercise in full of this
Warrant. The form of this Warrant need not be changed because of any
adjustment in the number of Warrant Shares subject to this Warrant."
2. The first paragraph of Section 8(d) of each Warrant is hereby amended and
restated in its entirety to read as follows:
"Except as provided in subsections (e) and (f) of this Section 8, if
and whenever the Company shall issue or sell, or is, in accordance with any
of subsections (d)(l) through (d)(6) hereof, deemed to have issued or sold,
any shares of Common Stock for no consideration or for a consideration per
share less than the Warrant Price in effect immediately prior to the time
of such issue or sale, then and in each such case (a "Trigger Issuance")
the then-existing Warrant Price, shall be reduced, as of the close of
business on the effective date of the Trigger Issuance, to the lowest price
per share at which any share of Common Stock was issued or sold or deemed
to be issued or sold, but in no event shall the Warrant Price be reduced to
less than the lesser of $0.10 per share (subject to adjustment as provided
in Section 8(a)) or 35% discount to the average closing price during the
twenty trading days prior to the first closing of the sale by the Company
of Convertible Preferred Stock, par value $0.001 per share as contemplated
by that certain Recapitalization Agreement dated as of April 26, 2004
between the Company and Toucan Capital Fund II, L.P.; provided, however,
that in no event will the Warrant Price be less than $.04 per share
(subject to adjustment as provided in Section 8(a))"
3. Section 8(f) of each Warrant is hereby amended and restated in its entirety
to read as follows:
"Anything to the contrary herein notwithstanding, in no event shall
the then existing Warrant Price be reduced to less than the lesser of $0.10
per share (subject to adjustment as provided in Section 8(a)) or 35%
discount to the average closing price during the twenty trading days prior
to the first closing of the sale by the Company of Convertible Preferred
Stock, par value $0.001 per share as contemplated by that certain
Recapitalization Agreement dated as of April 26, 2004 between the Company
and Toucan Capital Fund II, L.P.; provided, however, that in no event will
the Warrant Price be less than $.04 per share (subject to adjustment as
provided in Section 8(a)) pursuant to the adjustments provided for in
Section 8(d)."
4. Sections 8(b) and 8(c) of each Warrant are hereby deleted in their
entirety.
5. Section 18 of each Warrant is hereby deleted in its entirety.
6. All other terms and conditions of the Warrants shall be unaffected hereby
and remain in full force and effect.
7. This Amendment shall be governed by and construed under the laws of the
State of Washington as applied to agreements among Washington residents
entered into and to be performed entirely within the State of Washington.
8. 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.
[SIGNATURE PAGE FOLLOWS]
2.
IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT
TO WARRANT TO PURCHASE COMMON SHARES as of the date first above written.
COMPANY:
NORTHWEST BIOTHERAPEUTICS, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WARRANTHOLDERS:
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
/S/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
FIRST AMENDMENT TO WARRANT TO PURCHASE COMMON SHARES
