EXHIBIT 10.1
AMENDMENT NO. 8 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT
THIS AMENDMENT NO. 8 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT
(this "AMENDMENT") is made and entered into as of July 26, 2005 (the "EIGHTH
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, on May 13, 2005, the Company and Investor entered into Amendment
No. 6 to the Agreement;
WHEREAS, on June 16, 2005, the Company and Investor entered into Amendment
No. 7 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
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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
July 26, 2005 attached hereto as Exhibit A-12, and the July 26 Bridge Warrant
(as defined herein) in the form attached hereto as Exhibit K-7" immediately
following the phrase "in the form attached hereto as Exhibit K-6" in subsection
(g) thereof.
2. Section 2.2(a) of the Agreement is hereby amended by replacing "A-11" with
"A-12."
3. Section 2.3(b) of the Agreement is hereby amended by adding the following
text immediately following the twenty-first sentence thereof:
"On July 26, 2005 (the "EIGHTH AMENDMENT DATE"), Investor is providing an
additional $500,000 of Bridge Funding (the "JULY 00 XXXXXX XXXXXXX") to
cover general operating expenses and certain other expenses of the Company
agreed in advance by Investor during the period from July 26, 2005 through
August 23, 2005. The July 26 Bridge Funding shall be evidenced by a Note
in the form attached hereto as Exhibit A-12 and shall be provided on the
terms and conditions set forth herein. The July 26 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 "June 16 Bridge Funding" with "June 16 Bridge Funding or July 26 Bridge
Funding") in the twenty-second sentence thereof (i.e., the twenty-fifth 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 2.17, immediately
following Section 2.16 thereof, as follows:
"2.17 July 00 Xxxxxx Xxxxxxx:
(a) Issuance of July 00 Xxxxxx Xxxxxxx. Xx the Eighth 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
July 26 Bridge Funding (the "JULY 00 XXXXXX XXXXXXX"). The Company shall,
therefore, issue $500,000 in warrant coverage on the $500,000 of July 26
Bridge Funding provided on the Eighth Amendment Date. The number of shares
subject to the July 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 July 26 Bridge Warrant
shall therefore be 5,000,000 shares as of the Eighth Amendment Date.
(b) Exercise of July 00 Xxxxxx Xxxxxxx. The July 26 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 July 26 Bridge Warrant shall be $0.04 (subject to
adjustment for stock splits, stock dividends and the like, as provided
more fully in the July 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
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and conditions set forth herein and in the Convertible Preferred Stock
Term Sheet, then the July 00 Xxxxxx Xxxxxxx 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 July 26 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 July 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 July 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 July 00 Xxxxxx Xxxxxxx against impairment. Investor's rights,
preferences and privileges granted under and/or in connection with the
July 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 July 00 Xxxxxx Xxxxxxx 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 July 26
Bridge Funding, if issued apart from the July 00 Xxxxxx Xxxxxxx, is
$495,000, and the fair market value of the July 00 Xxxxxx Xxxxxxx, if
issued apart from such Note, is $5,000. 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 July 26 Bridge
Funding and/or the July 26 Bridge Warrant shall be prepared on the basis
of, and consistently reflect, the agreed fair market values set forth in
this Section 2.17(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(a) of the Agreement is hereby amended by replacing the phrase
"of 12 months commencing at the first closing of Convertible Preferred Stock"
with "beginning with the first closing of Convertible Preferred Stock and ending
on December 31, 2006 (or such later date as is mutually agreed by the parties
hereto)" in the first sentence thereof.
7. Section 3.4(b) of the Agreement is hereby amended by:
(a) replacing "$5.35 million" with "$4.85 million" in the first sentence
thereof; and
(b) replacing "53,500,000" with "48,500,000" in the third sentence
thereof.
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 $322,017, (ii) amounts payable to Cognate Therapeutics and
Investor, (iii) future sublease payments to MediQuest Corporation and a
contingent lease liability to Benaroya Capital Co. LLC for the Company's
premises should Mediquest Corporation default on its lease with Benaroya
Capital Co. LLC and which is not yet due, and (iv) the Company's aggregate
accrued, contingent and/or other liabilities of any nature, either mature
or immature, as of the Eighth Amendment Date, not in excess of $472,524
(excluding amounts payable to Cognate and Investor), of which (x) $356,694
are currently due payables (including $248,598 for attorney and auditor
fees), (y) $31,076 are the aggregate balances of capital leases payable in
monthly installments in the amounts set forth in the budget
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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) $84,754 are accrued vacation and sick pay."
9. The Agreement is hereby amended by adding new Exhibit A-12, immediately
following Exhibit A-11 thereto, in the form attached as Exhibit A-12 hereto.
10. Exhibit B to the Agreement, as amended on December 27, 2004, January 26,
2005, April 12, 2005, May 13, 2005 and June 16, 2005 is hereby further amended
by Exhibit B-6 hereto (the "SIXTH 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-7, immediately
following Exhibit K-6 thereto, in the form attached as Exhibit K-7 hereto.
12. The July 00 Xxxxxx Xxxxxxx in the form attached hereto as Exhibit K-7
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
July 26 Bridge Funding in the form attached hereto as Exhibit A-12 issued on the
Eighth Amendment Date shall be deemed to be a "NOTE" for all purposes under the
Agreement and any Related Recapitalization Document. Each of the July 26 Bridge
Warrant and the Note evidencing the July 26 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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IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 8
TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT as of the Eighth 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-12
FORM OF $500,000 LOAN AGREEMENT, SECURITY AGREEMENT AND 10% CONVERTIBLE,
SECURED PROMISSORY NOTE DATED JULY 26, 2005
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EXHIBIT B-6
FORM OF SIXTH AMENDMENT TO AMENDED AND RESTATED CONVERTIBLE PREFERRED
STOCK TERM SHEET
EXHIBIT K-7
FORM OF JULY 26 BRIDGE WARRANT
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