EXECUTION VERSION
EXHIBIT 10.3
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)."
EXECUTION VERSION
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.
EXECUTION VERSION
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:
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Name:
Title:
WARRANTHOLDERS:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/S/ Xxxxx X. Xxxxxxxx
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Xxxxx Xxxxxxxx
FIRST AMENDMENT TO WARRANT TO PURCHASE COMMON SHARES
