Table of Contents

 
 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
 
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) June 19, 2007
 
NORTHWEST BIOTHERAPEUTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
 
         
DELAWARE        
(STATE OR OTHER   0-33393   94-3306718
JURISDICTION   (COMMISSION FILE   (I.R.S. EMPLOYER
OF INCORPORATION)   NUMBER)   IDENTIFICATION NO.)
18701 120th Avenue NE, Suite 101, Bothell, WA 98011
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
 
REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE (425) 608-3000
 
INAPPLICABLE
(FORMER NAME OR FORMER ADDRESS IF CHANGED SINCE LAST REPORT)
 
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
  o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
  o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
  o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
  o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


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Item 1.01 Entry Into a Material Definitive Agreement.
Item 3.03 Material Modification to Rights of Security Holders.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Item 5.05 Amendments to the Registrants Code of Ethics, or Waiver of a Provision of the Code of Ethics.
Item 8.01 Other Information.
Item 9.01 Financial Statements and Exhibits.
SIGNATURE
EXHIBIT 3.1
EXHIBIT 3.2
EXHIBIT 10.1
EXHIBIT 10.2
EXHIBIT 10.3
EXHIBIT 10.4
EXHIBIT 10.5
EXHIBIT 10.6
EXHIBIT 10.7
EXHIBIT 10.8
EXHIBIT 10.9
EXHIBIT 14.1
EXHIBIT 99.1
EXHIBIT 99.2


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Item 1.01 Entry Into a Material Definitive Agreement.
Conversion of Preferred Stock and Related Matters
Northwest Biotherapeutics, Inc. (the “ Company ”), Toucan Capital Fund II, LLP (“ Toucan Capital” ) and Toucan Partners LLC (“ Toucan Partners ”) entered into a conversion agreement (the “ Conversion Agreement ”) dated June 15, 2007, which became effective on June 22, 2007 upon the admission of the Company’s common stock (“ Common Stock ”) to trade on the Alternative Investments Market (“AIM”) of the London Stock Exchange (the “ Admission ”).
Pursuant to the terms of the Conversion Agreement (i) Toucan Capital has agreed to convert and has converted all of its shares of the Company’s Series A Cumulative Convertible Preferred Stock (the “ Series A Preferred Stock ”) and the Company’s Series A-1 Cumulative Convertible Preferred Stock (the “ Series A-1 Preferred Stock ”) (in each case, excluding any accrued and unpaid dividends) into Common Stock and has agreed to eliminate a number of rights, preferences and protections associated with the Series A Preferred Stock and Series A-1 Preferred Stock, including the liquidation preference entitling Toucan Capital to certain substantial cash payments and (ii) Toucan Partners has agreed to eliminate all of its existing rights to receive Series A-1 Preferred Stock under certain notes and warrants (and thereafter to receive shares of Common Stock rather than shares of Series A-1 Preferred Stock), and the rights, preferences and protections associated with the Series A-1 Preferred Stock, including the liquidation preference that would entitle Toucan Partners to certain substantial cash payments, in return for issuance by the Company of an aggregate of 6,860,561 additional shares of Common Stock, to be apportioned between Toucan Capital and Toucan Partners as to 4,287,851 and 2,572,710 shares of Common Stock, respectively.
Upon conversion by Toucan Capital of all of its shares of the Company’s Series A Preferred Stock and Series A-1 Preferred Stock, no shares of either series of preferred stock remain outstanding. Accordingly, as approved by the Board of Directors of the Company, upon Admission on June 22, 2007, the Company filed with the Secretary of State of the State of Delaware a Certificate of Elimination of the Company’s Series A Cumulative Convertible Preferred Stock and a Certificate of Elimination of the Company’s Series A-1 Cumulative Convertible Preferred Stock, to eliminate the Company’s Series A Preferred Stock and Series A-1 Preferred Stock.
In addition, under the terms of the Conversion Agreement (i) the warrant to purchase Series A Preferred Stock held by Toucan Capital (the “ Toucan Series A Preferred Warrant ”) is exercisable for 2,166,667 shares of Common Stock rather than shares of Series A Preferred Stock (plus shares of Common Stock, rather than shares of Series A Preferred Stock, attributable to accrued dividends on the shares of Series A Preferred Stock previously held by Toucan Capital that were converted into Common Stock upon Admission, subject to the further provisions of the Conversion Agreement as described below) and (ii) warrants to purchase Series A-1 Preferred Stock held by Toucan Capital (the “ Toucan Capital Series A-1 Preferred Warrants ”) are exercisable for an aggregate of 17,256,888 shares of Common Stock rather than shares of Series A-1 Preferred Stock (plus shares of Common Stock, rather than shares of Series A-1 Preferred Stock, attributable to accrued dividends on the shares of Series A-1 Preferred Stock previously held by Toucan Capital that were converted into Common Stock upon Admission). Also, the 32,500,000 shares of Series A Preferred Stock held by Toucan Capital converted, in accordance with their terms into 2,166,667 shares of Common Stock and the 4,816,863 shares of Series A-1 Preferred Stock held by Toucan Capital converted, in accordance with their terms, into 12,844,968 shares of Common Stock, and the convertible promissory notes issued by the Company to Toucan Partners in aggregate principal amount of $4.825 million (the “ Toucan Partners Notes ”) and associated warrants (the “ Toucan Partners Note Warrants ”) became convertible solely for shares of Common Stock.
Under the terms of the Conversion Agreement, Toucan Capital also agreed to temporarily defer receipt of the accrued and unpaid dividends on its shares of Series A Preferred Stock and Series A-1 Preferred Stock of an

 


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amount equal to $334,340 and $917,451, respectively, until not later than September 30, 2007. To the extent that all accrued and unpaid dividends are not paid in cash on or before September 30, 2007, Toucan Capital may elect, in its sole discretion, to have the accrued and unpaid dividends satisfied, in whole or in part (including through a combination of the following), by (A) cash payment; (B) offset or satisfaction of the applicable exercise prices of some or all the Toucan Series A Preferred Warrant and/or the Toucan Capital Series A-1 Preferred Warrants, such that the aggregate exercise price of such warrants is reduced by an amount equal to the amount of accrued and unpaid dividends being satisfied through such adjustment; or (C) the issuance of shares of Common Stock at $0.60 per share (after giving effect to the Reverse Stock Split (as defined below), and as may be further adjusted for stock splits, stock dividends, reverse stock splits and similar actions effected after the date of the Conversion Agreement). If Toucan Capital elects to have the accrued and unpaid dividends of approximately $1,251,791 satisfied in whole by the issuance of shares of Common Stock at $0.60 per share, Toucan Capital would be issued approximately 2,086,318 shares of Common Stock.
The foregoing description of the Conversion Agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated by reference herein.
Termination of Recapitalization Agreement
On June 22, 2007, the Company and Toucan Capital entered into a Termination Agreement (the “ Termination Agreement ”) pursuant to which the Recapitalization Agreement originally dated as of April 26, 2004, between the Company and Toucan Capital, as amended and restated on July 30 2004, and as further amended from time to time, was terminated except for certain provisions relating to indemnification, injunctive relief and other miscellaneous provisions. The foregoing description of the Termination Agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.2 and incorporated by reference herein.
Second Amended and Restated Investor Rights Agreement
On June 22, 2007, the Company and Toucan Capital entered into a Second Amended and Restated Investor Rights Agreement (the “Second Amended and Restated Investor Rights Agreement ”) amending and restating the Amended and Restated Investor Rights Agreement, dated January 26, 2005, to eliminate Toucan Capital’s right of first refusal to purchase its pro rata share of any new offering of securities of the Company and to clarify that all shares of Common Stock held by Toucan Capital or Toucan Partners and all shares of Common Stock that are issuable or issued upon conversion of the Toucan Partners Notes, Toucan Partners Note Warrants or the Toucan Capital Warrants are subject to registration rights. The foregoing description of the Second Amended and Restated Investor Rights Agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.3 and incorporated by reference herein.
Nomad Agreement
On June 15, 2007, the Company and Collins Stewart European Limited (“ Collins Stewart ”) entered into a Nominated Adviser and Broker Agreement (the “ Nomad Agreement ”) that became effective on June 22, 2007 pursuant to which Collins Stewart was appointed as nominated advisor and broker to the Company in connection with Admission. The Nomad Agreement is for an initial 12 month period and thereafter is terminable on three month’s written notice given by either party. Under the Nomad Agreement, Collins Stewart will receive a fee of approximately $100,000 per year plus expenses incurred. The foregoing description of the Nomad Agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.4 and incorporated by reference herein.
Stock Option Plans
The Company has established a new stock option plan, which became effective upon Admission on June 22, 2007 (the “ 2007 Stock Option Plan ”). The Company has reserved a total of 5,480,868 shares of Common Stock for issue in respect of options granted under the plan (after giving effect to the Reverse Stock Split (as defined

 


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below)). The plan provides for the grant to employees of the Company, its parents and subsidiaries, including officers and employee directors, of “incentive stock options” within the meaning of Section 422 of the US Internal Revenue Code and for the grant of non-statutory stock options to the employees, officers, directors, including non-employee directors, and consultants of the Company, its parents and subsidiaries. To the extent an optionee would have the right in any calendar year to exercise for the first time one or more incentive stock options for shares having an aggregate fair market value, under all of the Company’s plans and determined as of the grant date, in excess of $100,000, any such excess options will be treated as non-statutory options. The foregoing description of the 2007 Stock Option Plan is subject in its entirety to the 2007 Stock Option Plan attached to this Current Report on Form 8-K as Exhibit 10.5 and incorporated by reference herein.
In addition, the Company has amended its existing equity plans effective upon Admission on June 22, 2007, such that no further option grants may be made under those plans.
Item 3.03 Material Modification to Rights of Security Holders .
The descriptions of the Conversion Agreement, Termination Agreement and Second Amended and Restated Investor Rights Agreement set forth in Item 1.01 above are incorporated herein by reference.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
Board Appointment; Committee Appointments
Upon Admission on June 22, 2007, the Company expanded the Board of Directors to four members and appointed R. Steve Harris, 64, to fill the newly created vacancy on the Board. Mr. Harris joined the Board as a non-executive director of the Company effective upon Admission on June 22, 2007. Mr. Harris is currently the non-executive Chairman of Proteome Sciences plc, Convé plc and Sinclair Pharma plc. He is also a non-executive director of SkyePharma plc, Advanced Medical Solutions plc and Premier Research plc. Mr. Harris holds a Bachelor of Pharmacy Degree (University of London) and was elected a Fellow of the Royal Pharmaceutical Society in 2000. Mr. Harris also was designated to serve as a member of the Audit Committee, Compensation Committee, and Nominating Committee.
Ms. Linda Powers, who previously was appointed to the Board (as described in the Form 8-K filed on May 21, 2007) has been appointed to the Company’s Audit Committee, Compensation Committee, and Nominative Committee.
Employment and other Compensation Arrangements
Upon Admission on June 22, 2007, the employment agreement between the Company and Alton L. Boynton, Ph.D. became effective. Under the terms of the agreement, Dr. Boynton is employed as Chief Executive Officer and President of the Company. Pursuant to the terms of the agreement, Dr. Boynton is paid annual compensation of $331,250 for his services. The agreement provides for standard benefits, including coverage under the Company’s medical, dental, vision, life and disability polices. Dr. Boynton is eligible to participate in the Company’s 401(k) plan and to receive a bonus at the discretion of the Board. The foregoing description of Dr. Boynton’s employment agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.6 and incorporated by reference herein.
Upon Admission on June 22, 2007, the employment agreement between the Company and Jim D. Johnston became effective. Under the terms of the agreement, Mr. Johnston is employed as Chief Financial Officer and General Counsel of the Company. Pursuant to the terms of the agreement, Mr. Johnston is paid annual compensation of $180,000 for his services. Mr. Johnston is required to devote 60 percent of his time to the Company’s business. The agreement provides for standard benefits, including coverage under the Company’s medical, dental, vision, life and disability polices. Mr. Johnston is eligible to participate in the Company’s 401(k) plan and to receive a bonus at the discretion of the Board. The foregoing description of Mr. Johnston’s

 


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employment agreement is subject in its entirety to the terms of the agreement which is attached to this Current Report on Form 8-K as Exhibit 10.7 and incorporated by reference herein.
Upon Admission on June 22, 2007, the Company is required to pay Linda Powers as Chairperson and a non-executive member of the Board of Directors approximately $100,000 per annum for her services. Also upon Admission, the Company is required to pay R. Steve Harris as a non-executive member of the Board of Directors approximately $60,000 per annum for his services. The foregoing description of the non-executive directors agreements is subject in its entirety to the Letters of Appointment attached to this Current Report on Form 8-K as Exhibits 10.8 and 10.9 and incorporated by reference herein.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Bylaw Amendment
Effective June 22, 2007, the Company’s bylaws were amended to (i) eliminate the ability to obtain stockholder approval by written consent in lieu of a meeting, (ii) require notification to the Company by stockholders of holdings of equal to or more than 3% of the aggregate outstanding shares of a class or series of the Company’s capital stock and (iii) restrict certain transfers of the Company’s Common Stock issued or sold pursuant to Regulation S of the Securities Act of 1933, as amended. The foregoing description of the amendments to the Company’s bylaws is subject in its entirety to the bylaws which are attached to this Current Report on Form 8-K as Exhibit 3.1 and incorporated by reference herein.
Item 5.05 Amendments to the Registrants Code of Ethics, or Waiver of a Provision of the Code of Ethics.
Adoption of New Code of Ethics
Effective June 22, 2007, the Company’s Board of Directors adopted a new Code of Ethics to conform the Code to current industry practice and to reflect the fact that the Company’s common stock has been admitted to AIM. The Code of Ethics is attached to this Current Report on Form 8-K as Exhibit 14.1 and incorporated herein by reference.
Item 8.01 Other Information.
Amendment to Certificate of Incorporation
On June 19, 2007, the Company’s announced that the 1-for-15 reverse stock split of its outstanding common stock (the “ Reverse Stock Split ”) became legally effective after the Company filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Company’s Seventh Amended and Restated Certificate of Incorporation (the “ Charter Amendment ”). The foregoing description of the Charter Amendment is subject in its entirety to the Charter Amendment attached to this Current Report on Form 8-K as Exhibit 3.2 and incorporated by reference herein.
Press Release
On June 22, 2007, the Company issued a press release in compliance with Rule 135c of the Securities Act of 1933 relating to the placement of shares of its Common Stock with foreign institutional investors and admission of its Common Stock on AIM. A copy of the press release is attached hereto as Exhibit 99.1. Also on June 22, 2007, the Company issued a second press release related to the Reverse Stock Split. A copy of the second press release is attached hereto as Exhibit 99.2.
Item 9.01 Financial Statements and Exhibits.
The following are filed as exhibits to this report.

 


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3.1
  Third Amended and Restated Bylaws of Northwest Biotherapeutics, Inc.
3.2
  Amendment to the Seventh Amended and Restated Certificate of Incorporation of Northwest Biotherapeutics, Inc.
10.1
  Conversion Agreement dated June 15, 2007 and effective June 22, 2007 between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, LLP.
10.2
  Termination Agreement dated June 22, 2007 between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, LLP.
10.3
  Second Amended and Restated Investor Rights Agreement dated June 22, 2007 between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, LLP.
10.4
  Nomad Agreement dated June 15, 2007 and effective June 22, 2007 between Northwest Biotherapeutics, Inc. and Collins Stewart Europe Limited.
10.5
  2007 Stock Option Plan
10.6
  Employment Agreement dated June 18, 2007 between Dr. Alton Boynton and Northwest Biotherapeutics, Inc.
10.7
  Employment Agreement dated June 18, 2007 between Jim Johnston and Northwest Biotherapeutics, Inc.
10.8
  Letter of Appointment for Linda L. Powers
10.9
  Letter of Appointment for R. Steve Harris
14.1
  Code of Ethics of Northwest Biotherapeutics, Inc.
99.1
  Northwest Biotherapeutics, Inc. press release dated June 22, 2007: Northwest Biotherapeutics Closes its Placement of Shares with Foreign Institutional Investors
99.2
  Northwest Biotherapeutics, Inc. press release dated June 22, 2007: Northwest Biotherapeutics Announces Effectiveness of Reverse Stock Split

 


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Table of Contents
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  NORTHWEST BIOTHERAPEUTICS, INC.
 
 
June 22, 2007  By   /s/ Alton Boynton    
    Alton L. Boynton   
    President & Chief Executive Officer   
 

 

 

EXHIBIT 3.1
THIRD AMENDED AND RESTATED
BYLAWS
OF
NORTHWEST BIOTHERAPEUTICS, INC.
Adopted
June 15, 2007

 


 

TABLE OF CONTENTS
         
    Page
PREAMBLE
    1  
 
       
ARTICLE I OFFICERS AND RECORDS
    1  
 
       
Section 1.1 Registered Office and Agent
    1  
Section 1.2 Other Offices
    1  
Section 1.3 Books and Records
    1  
 
       
ARTICLE II MEETINGS OF STOCKHOLDERS
    1  
 
       
Section 2.1 Annual Meetings
    1  
Section 2.2 Special Meetings
    2  
Section 2.3 Place of Meetings
    2  
Section 2.4 Notice of Meetings
    2  
Section 2.5 Voting List
    2  
Section 2.6 Quorum and Adjournment
    3  
Section 2.7 Adjourned Meetings
    3  
Section 2.8 Voting
    3  
Section 2.9 Proxies
    4  
Section 2.10 Record Date
    5  
Section 2.11 Conduct of Meetings; Agenda
    5  
Section 2.12 Inspectors of Election; Opening and Closing of Polls
    5  
Section 2.13 Procedures for Bringing Business Before Annual Meetings
    6  
Section 2.14 Action Without Meeting
    7  
 
       
ARTICLE III BOARD OF DIRECTORS — POWERS, NUMBER, CLASSIFICATION, NOMINATIONS, RESIGNATIONS,
                   REMOVAL, VACANCIES AND COMPENSATION
    8  
 
       
Section 3.1 Management
    8  
Section 3.2 Number and Qualification
    8  
Section 3.3 Classes of Directors
    8  
Section 3.4 Election; Term of Office
    8  
Section 3.5 Allocation of Directors Among Classes In The Event of Increases or Decreases In The Number of Directors
    8  
Section 3.6 Nominations
    9  
Section 3.7 Resignations
    10  
Section 3.8 Removal
    11  
Section 3.9 Vacancies
    11  
Section 3.10 Subject to Rights of Holders of Preferred Stock
    11  
Section 3.11 Compensation
    12  
 
       
ARTICLE IV BOARD OF DIRECTORS — MEETINGS AND ACTIONS
    12  
 
       
Section 4.1 Place of Meetings
    12  
Section 4.2 Regular Meetings
    12  
Section 4.3 Special Meetings
    12  

- i -


 

         
    Page
Section 4.4 Quorum; Voting
    12  
Section 4.5 Conduct of Meetings
    13  
Section 4.6 Presumption of Assent
    13  
Section 4.7 Action Without Meeting
    13  
Section 4.8 Telephonic Meetings
    13  
 
       
ARTICLE V COMMITTEES OF THE BOARD OF DIRECTORS
    13  
 
       
Section 5.1 Executive Committee
    13  
Section 5.2 Other Committees
    14  
Section 5.3 Term
    14  
Section 5.4 Committee Changes; Removal
    14  
Section 5.5 Alternate Members
    14  
Section 5.6 Rules and Procedures
    14  
Section 5.7 Presumption of Assent
    15  
Section 5.8 Action Without Meeting
    15  
Section 5.9 Telephonic Meetings
    15  
Section 5.10 Resignations
    15  
Section 5.11 Limitations on Authority
    15  
 
       
ARTICLE VI OFFICERS
    16  
 
       
Section 6.1 Number; Titles; Qualification; Term of Office
    16  
Section 6.2 Election
    16  
Section 6.3 Removal
    16  
Section 6.4 Resignations
    17  
Section 6.5 Vacancies
    17  
Section 6.6 Salaries
    17  
Section 6.7 Chairman of The Board
    17  
Section 6.8 Chief Executive Officer
    17  
Section 6.9 President
    17  
Section 6.10 Chief Scientific Officer
    18  
Section 6.11 Vice Presidents
    18  
Section 6.12 Treasurer
    18  
Section 6.13 Assistant Treasurers
    18  
Section 6.14 Secretary
    19  
Section 6.15 Assistant Secretaries
    19  
 
       
ARTICLE VII STOCK
    19  
 
       
Section 7.1 Certificates
    19  
Section 7.2 Signatures on Certificates
    19  
Section 7.3 Legends
    20  
Section 7.4 Lost, Stolen or Destroyed Certificates
    20  
Section 7.5 Transfers of Shares
    20  
Section 7.6 Registered Stockholders
    21  
Section 7.7 Regulations
    21  
Section 7.8 Stock Options, Warrants, etc.
    21  

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    Page
ARTICLE VIII INDEMNIFICATION
    21  
 
       
Section 8.1 Third Party Actions
    21  
Section 8.2 Actions By or In The Right of The Corporation
    22  
Section 8.3 Expenses
    22  
Section 8.4 Non-Exclusivity
    23  
Section 8.5 Enforceability
    23  
Section 8.6 Insurance
    23  
Section 8.7 Survival
    23  
Section 8.8 Amendment
    23  
Section 8.9 Definitions
    24  
 
       
ARTICLE IX NOTICES AND WAIVERS
    24  
 
       
Section 9.1 Methods of Giving Notices
    24  
Section 9.2 Waiver of Notice
    24  
 
       
ARTICLE X BENEFICIAL OWNERSHIP NOTICES
    25  
 
       
Section 10.1 OWNERSHIP NOTICE
    25  
Section 10.2 DISCLOSURE NOTICE
    25  
Section 10.3 EFFECT OF DISCLOSURE NOTICE
    25  
 
       
ARTICLE XI MISCELLANEOUS PROVISIONS
    27  
 
       
Section 11.1 Dividends
    27  
Section 11.2 Reserves
    27  
Section 11.3 Checks
    27  
Section 11.4 Corporate Contracts and Instruments
    27  
Section 11.5 Attestation
    27  
Section 11.6 Securities of Other Corporations
    27  
Section 11.7 Fiscal Year
    28  
Section 11.8 Seal
    28  
Section 11.9 Invalid Provisions
    28  
Section 11.10 Headings
    28  
Section 11.11 References/Gender/Number
    28  
Section 11.12 Amendments
    28  
 
       
CERTIFICATE OF SECRETARY
    28  

- iii -


 

THIRD AMENDED AND RESTATED BYLAWS
OF NORTHWEST BIOTHERAPEUTICS, INC.
PREAMBLE
     These Bylaws are subject to, and governed by, the General Corporation Law of the State of Delaware (“DGCL”) and the Certificate of Incorporation (“Certificate of Incorporation”) of Northwest Biotherapeutics, Inc. (“Corporation”). In the event of a direct conflict between the provisions of these Bylaws and the mandatory provisions of the DGCL or the provisions of the Certificate of Incorporation, such provisions of the DGCL and the Certificate of Incorporation, as the case may be, will be controlling.
ARTICLE I
OFFICERS AND RECORDS
     SECTION 1.1 REGISTERED OFFICE AND AGENT. The registered office and registered agent of the Corporation shall be as designated from time to time by the appropriate filing by the Corporation in the office of the Secretary of State of the State of Delaware.
     SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors of the Corporation (“Board of Directors”) may from time to time determine or the business of the Corporation may require.
     SECTION 1.3 BOOKS AND RECORDS. The books and records of the Corporation may be kept at the Corporation’s principal executive office or at such other locations as may from time to time be designated by the Board of Directors. Consents and notices may be received in the form of electronic communications provided that they are reproduced in paper form and delivered to the Corporation’s principal executive office unless otherwise provided in the Certificate of Incorporation or the DGCL. The use of reproductions of consents including, but not limited to copies, faxes, and other reliable reproductions, may be used in lieu of the original writing for any and all purposes for which the original writing could be used, provided the reproduction is a complete reproduction of the entire original writing pursuant to the DGCL.
ARTICLE II
MEETINGS OF STOCKHOLDERS
     SECTION 2.1 ANNUAL MEETINGS. An annual meeting of the Corporation’s stockholders (the “Stockholders”) shall be held each calendar year for the purposes of (i) electing directors as provided in Article III and (ii) transacting such other business as may properly be brought before the meeting. Each annual meeting shall be held on such date (no later than 13 months after the date of the last annual meeting of Stockholders) and at such time as shall be designated by the Board of Directors and stated in the notice or waivers of notice of such meeting.


 

     SECTION 2.2 SPECIAL MEETINGS. Special meetings of the Stockholders, for any purpose or purposes, may be called at any time by the Chairman of the Board (if any) or the Chief Executive Officer and shall be called by the Secretary at the written request, or by resolution adopted by the affirmative vote of a majority of the Corporation’s directors, which request or resolution shall fix the date, time and place, and state the purpose or purposes, of the proposed meeting. Except as provided by applicable law, these Bylaws, or the Certificate of Incorporation, Stockholders shall not be entitled to call a special meeting of Stockholders or to require the Board of Directors or any officer to call such a meeting or to propose business at such a meeting. Business transacted at any special meeting of Stockholders shall be limited to the purposes stated in the notice or waivers of notice of such meeting.
     SECTION 2.3 PLACE OF MEETINGS. The Board of Directors may designate the place of meeting (either within or without the State of Delaware) for any meeting of Stockholders. If no designation is made by the Board of Directors, the place of meeting shall be held at the principal executive office of the Corporation.
     SECTION 2.4 NOTICE OF MEETINGS. (a) Written or electronic notice of each meeting of Stockholders shall be delivered to each Stockholder of record entitled to vote thereat, which notice shall (i) state the place, date and time of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called and (ii) be given not less than 10 nor more than 60 days before the date of the meeting.
     (b) Each notice of a meeting of Stockholders shall be given as provided in Section 9.1, except that if no address appears on the Corporation’s books or stock transfer records with respect to any Stockholder, notice to such Stockholder shall be deemed to have been given if sent by first-class mail or telecommunication to the Corporation’s principal executive office or if published at least once in a newspaper of general circulation in the county where such principal executive office is located.
     (c) If any notice addressed to a Stockholder at the address of such Stockholder appearing on the books of the Corporation is returned to the Corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the Stockholder at such address, all further notices to such Stockholder at such address shall be deemed to have been duly given without further mailing if the same shall be available to such Stockholder upon written demand of such Stockholder at the principal executive office of the Corporation for a period of one year from the date of the giving of such notice.
     (d) Any previously scheduled meeting of the Stockholders may be postponed by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting.
     SECTION 2.5 VOTING LIST. At least 10 days before each meeting of Stockholders, the Secretary or other officer or agent of the Corporation who has charge of the Corporation’s stock ledger shall prepare a complete list of the Stockholders entitled to vote at such meeting, arranged in alphabetical order and showing, with respect to each Stockholder, his address and the number of shares registered in his name. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a

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period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice or waivers of notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept open at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the Stockholders entitled to examine any list required by this Section 2.5 or to vote at any meeting of Stockholders.
     SECTION 2.6 QUORUM AND ADJOURNMENT. The holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the “Voting Stock”), present in person or by proxy, shall constitute a quorum at any meeting of Stockholders, except as otherwise provided by applicable law, the Certificate of Incorporation, or these Bylaws. If a quorum is present at any meeting of Stockholders, such quorum shall not be broken by the withdrawal of enough Stockholders to leave less than a quorum and the remaining Stockholders may continue to transact business until adjournment. If a quorum shall not be present at any meeting of Stockholders, the holders of a majority of the voting stock represented at such meeting or, if no Stockholder entitled to vote is present at such meeting, any officer of the Corporation may adjourn such meeting from time to time until a quorum shall be present. Notwithstanding anything in these Bylaws to the contrary, the chairman of any meeting of Stockholders shall have the right, acting in his sole discretion, to adjourn such meeting from time to time.
     SECTION 2.7 ADJOURNED MEETINGS. When a meeting of Stockholders is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken; provided, however, if an adjournment is for more than 30 days or if after an adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder entitled to vote thereat. At any adjourned meeting at which a quorum shall be present in person or by proxy, the Stockholders entitled to vote thereat may transact any business which might have been transacted at the meeting as originally noticed.
     SECTION 2.8 VOTING. (a) Election of directors at all meetings of Stockholders at which directors are to be elected shall be by written ballot or electronic communications and, except as otherwise provided in the Certificate of Incorporation, a plurality of the votes cast thereat shall elect. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, all matters other than the election of directors submitted to the Stockholders at any meeting shall be decided by a majority of the votes cast with respect to such matter. Except as otherwise provided in the Certificate of Incorporation or by applicable law, (i) no Stockholder shall have any right of cumulative voting and (ii) each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of Stockholders.
     (b) Shares standing in the name of another corporation (whether domestic or foreign) may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe or, in the absence of such provision, as the board of directors of such corporation may determine. Shares standing in the name of a deceased person may be voted by the executor or administrator

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of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by proxy, but no fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares standing in the name of a receiver may be voted by such receiver. A Stockholder whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the Corporation he has expressly empowered the pledgee to vote thereon, in which case only the pledgee (or his proxy) may represent the stock and vote thereon.
     (c) If shares or other securities having voting power stand of record in the name of two or more persons (whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise) or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect:
          (i) if only one votes, his act binds all;
          (ii) if more than one votes, the act of the majority so voting binds all; and
          (iii) if more than one votes but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionately or any person voting the shares, or a beneficiary, (if any) may apply to the Delaware Court of Chancery or such other court as may have jurisdiction to appoint an additional person to act with the person so voting the shares, which shall then be voted as determined by a majority such persons and the person so appointed by the court.
If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of the paragraph (c) shall be a majority or even-split in interest.
     SECTION 2.9 PROXIES. (a) At any meeting of Stockholders, each Stockholder having the right to vote thereat may be represented and vote either in person or by proxy executed in writing by such Stockholder or by his duly authorized attorney-in-fact. Each such proxy shall be filed with the Secretary of the Corporation at or before the beginning of each meeting at which such proxy is to be voted. Unless otherwise provided therein, no proxy shall be valid after three years from the date of its execution. Each proxy shall be revocable unless expressly provided therein to be irrevocable and coupled with an interest sufficient in law to support an irrevocable power or unless otherwise made irrevocable by applicable law.
     (b) A proxy shall be deemed signed if the Stockholder’s name is placed on the proxy (whether by manual signature, telegraphic transmission or otherwise) by the Stockholder or his attorney-in-fact. In the event any proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting (or, if only one shall be present, then that one) shall have and may exercise all the powers conferred by the proxy upon all the persons so designated unless the proxy shall otherwise provide.

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     (c) Except as otherwise provided by applicable law, by the Certificate of Incorporation or by these Bylaws, the Board of Directors may, in advance of any meeting of Stockholders, prescribe additional regulations concerning the manner of execution and filing of proxies (and the validation of same) which may be voted at such meeting.
     SECTION 2.10 RECORD DATE. For the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders (or any adjournment thereof) or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors or be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action. If no record date is fixed, (i) the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held and (ii) the record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Stockholders of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
     SECTION 2.11 CONDUCT OF MEETINGS; AGENDA. (a) Meetings of the Stockholders shall be presided over by the officer of the Corporation whose duties under these Bylaws require him to do so; provided, however, if no such officer of the Corporation shall be present at any meeting of Stockholders, such meeting shall be presided over by a chairman to be chosen by a majority of the Stockholders entitled to vote at the meeting who are present in person or by proxy. At each meeting of Stockholders, the officer of the Corporation whose duties under these Bylaws require him to do so shall act as secretary of the meeting; provided, however, if no such officer of the Corporation shall be present at any meeting of Stockholders, the chairman of such meeting shall appoint a secretary. The order of business at each meeting of Stockholders shall be as determined by the chairman of the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him in order.
     (b) The Board of Directors may, in advance of any meeting of Stockholders, adopt an agenda for such meeting, adherence to which the chairman of the meeting may enforce.
     SECTION 2.12 INSPECTORS OF ELECTION; OPENING AND CLOSING OF POLLS. (a) Before any meeting of Stockholders, the Board of Directors may, and if required by law shall, appoint one or more persons to act as inspectors of election at such meeting or any adjournment thereof. If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the meeting may, and if required by law or requested by any Stockholder entitled to vote or his proxy shall, appoint a substitute inspector. If no inspectors are appointed by the Board of Directors, the chairman of the meeting may, and if required by law or requested by any Stockholder entitled to vote or his proxy shall, appoint one or more inspectors at the meeting. Notwithstanding the foregoing, inspectors shall be appointed consistent with the mandatory provisions of Section 231 of the DGCL.

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     (b) Inspectors may include individuals who serve the Corporation in other capacities (including as officers, employees, agents or representatives); provided, however, that no director or candidate for the office of director shall act as an inspector. Inspectors need not be Stockholders.
     (c) The inspectors shall (i) determine the number of shares of capital stock of the Corporation outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum and the validity and effect of proxies and (ii) receive votes or ballots, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes and ballots, determine the results and do such acts as are proper to conduct the election or vote with fairness to all Stockholders. On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. The inspectors shall have such other duties as may be prescribed by Section 231 of the DGCL.
     (d) The chairman of the meeting may, and if required by the DGCL shall, fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at the meeting.
     SECTION 2.13 PROCEDURES FOR BRINGING BUSINESS BEFORE ANNUAL MEETINGS. (a) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting of Stockholders except in accordance with the procedures hereinafter set forth in this Section 2.13; provided, however, that nothing in this Section 2.13 shall be deemed to preclude discussion by any Stockholder of any business properly brought before any annual meeting of Stockholders in accordance with such procedures.
     (b) At any annual meeting of Stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (iii) properly brought before the meeting by a Stockholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a Stockholder, the Stockholder must have given timely notice thereof in writing to the Secretary. To be timely, a Stockholder’s notice must be delivered to or mailed and received at the principal executive office of the Corporation not less than 120 days nor more than 150 days in advance of the first anniversary of the date of the Corporation’s proxy statement released to Stockholders in connection with the previous year’s annual meeting of Stockholders; provided, however, that if no annual meeting was held in the previous year or the date of the annual meeting of Stockholders has been changed by more than 30 calendar days from the date contemplated at the time of the previous year’s proxy statement, the notice must be received by the Corporation at least 80 days prior to the date the Corporation intends to distribute its proxy statement with respect to such meeting. Any meeting of Stockholders which is adjourned and will reconvene within 30 days after the meeting date as originally noticed shall, for purposes of any Stockholder’s notice contemplated by this paragraph (b), be deemed to be a continuation of the original meeting, and no business may be brought before such adjourned meeting by any Stockholder unless timely notice of such business was given to the Secretary of the Corporation for the meeting as originally noticed.

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     (c) Each notice given by a Stockholder as contemplated by paragraph (b) above shall set forth, as to each matter the Stockholder proposes to bring before the annual meeting, (i) the nature of the proposed business with reasonable particularity, including the exact text of any proposal to be presented for adoption and any supporting statement, which proposal and supporting statement shall not in the aggregate exceed 500 words, and his reasons for conducting such business at the annual meeting, (ii) any material interest of the Stockholder in such business, (iii) the name, principal occupation and record address of the Stockholder, (iv) the class and number of shares of the Corporation which are held of record or beneficially owned by the Stockholder, (v) the dates upon which the Stockholder acquired such shares of stock and documentary support for any claims of beneficial ownership and (vi) such other matters as may be required by the Certificate of Incorporation.
     (d) The foregoing right of a Stockholder to propose business for consideration at an annual meeting of Stockholders shall be subject to such conditions, restrictions and limitations as may be imposed by the Certificate of Incorporation. Nothing in this Section 2.13 shall entitle any Stockholder to propose business for consideration at any special meeting of Stockholders.
     (e) The chairman of any meeting of Stockholders shall determine whether business has been properly brought before the meeting and, if the facts so warrant, may refuse to transact any business at such meeting which has not been properly brought before the meeting.
     (f) Notwithstanding any other provision of these Bylaws, the Corporation shall be under no obligation to include any Stockholder proposal in its proxy statement or otherwise present any such proposal to Stockholders at a meeting of Stockholders if the Board of Directors reasonably believes that the proponents thereof have not complied with Sections 13 and 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, and the Corporation shall not be required to include in its proxy statement to Stockholders any Stockholder proposal not required to be included in its proxy statement to Stockholders in accordance with the Exchange Act and such rules or regulations.
     (g) Nothing in this Section 2.13 shall be deemed to affect any rights of Stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 of the Exchange Act.
     (h) Reference is made to Section 3.4 for procedures relating to the nomination of any person for election or reelection as a director of the Corporation.
     SECTION 2.14 ACTION WITHOUT MEETING. No action shall be taken by Stockholders except at a meeting of Stockholders. Stockholders may not act by written consent in lieu of a meeting.

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ARTICLE III
BOARD OF DIRECTORS — POWERS, NUMBER,
CLASSIFICATION, NOMINATIONS, RESIGNATIONS,
REMOVAL, VACANCIES AND COMPENSATION
     SECTION 3.1 MANAGEMENT. The business and property of the Corporation shall be managed by and under the direction of the Board of Directors. In addition to the powers and authorities expressly conferred upon the Board of Directors by these Bylaws, the Board of Directors may exercise all the powers of the Corporation and do all such lawful acts and things as are not by law, by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the Stockholders.
     SECTION 3.2 NUMBER AND QUALIFICATION. The number of directors shall be fixed from time to time exclusively pursuant to resolution adopted by a majority of the Corporation’s directors, but shall consist of not less than one nor more than seven directors, subject, however, to increases above seven members as may be required in order to permit the holders of any series of preferred stock of the Corporation to elect directors under specified circumstances. The directors need not be Stockholders or residents of the State of Delaware. Each director must have attained 21 years of age.
     SECTION 3.3 CLASSES OF DIRECTORS. The Board of Directors shall be divided into three classes designated as Class I, Class II and Class III, respectively, all as nearly equal in number as possible, with each director then in office receiving the classification to be determined with respect to such director by the Board of Directors.
     SECTION 3.4 ELECTION; TERM OF OFFICE. (a) The initial term of office of Class I directors shall expire at the annual meeting of the Corporation’s Stockholders in 2002. The initial term of office of Class II directors shall expire at the annual meeting of Stockholders in 2003. The initial term of office of Class III directors shall expire at the annual meeting of Stockholders in 2004. Subject to Sections 3.9 and 3.10, each director elected at an annual meeting of Stockholders to succeed a director whose term is expiring shall hold office until the third annual meeting of Stockholders after his election and until his successor is elected and qualified or until his earlier death, resignation or removal.
     (b) Directors shall be elected by Stockholders only at annual meetings of Stockholders, except that if any such annual meeting is not held or if any director to be elected thereat is not elected, such director may be elected at any special meeting of Stockholders held for that purpose.
     (c) No decrease in the number of directors constituting the Board of Directors shall have the effect of shortening the term of any incumbent director.
     SECTION 3.5 ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease in the authorized number of directors, (i) each director then serving as such shall nevertheless continue as a director of the class of which he is a member and

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(ii) the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board of Directors among the three classes of directors so as to ensure that no one class has more than one director more than any other class. To the extent possible, consistent with the foregoing rule, any newly created directorships shall be added to those classes whose terms of office are to expire at the latest dates following such allocation, and any newly eliminated directorships shall be subtracted from those classes whose terms of office are to expire at the earliest dates following such allocation, unless otherwise provided from time to time by resolution adopted by the Board of Directors.
     SECTION 3.6 NOMINATIONS. (a) Notwithstanding anything in these Bylaws to the contrary, only persons who are nominated in accordance with the procedures hereinafter set forth in this Section 3.6 shall be eligible for election as directors of the Corporation.
     (b) Nominations of persons for election to the Board of Directors at a meeting of Stockholders may be made only (i) by or at the direction of the Board of Directors or (ii) by any Stockholder entitled to vote for the election of directors at the meeting who satisfies the eligibility requirements (if any) set forth in the Certificate of Incorporation and who complies with the notice procedures set forth in this Section 3.6 and in the Certificate of Incorporation; provided, however, Stockholders may not nominate persons for election to the Board of Directors at any special meeting of Stockholders unless the business to be transacted at such special meeting, as set forth in the notice of such meeting, includes the election of directors. Nominations by Stockholders shall be made pursuant to timely notice in writing to the Secretary. To be timely, a Stockholder’s notice given in the context of an annual meeting of Stockholders shall be delivered to or mailed and received at the principal executive office of the Corporation not less than 120 days nor more than 150 days in advance of the first anniversary of the date of the Corporation’s proxy statement released to Stockholders in connection with the previous year’s annual meeting of Stockholders; provided, however, that if no annual meeting was held in the previous year or the date of the annual meeting of Stockholders has been changed by more than 30 calendar days from the date contemplated at the time of the previous year’s proxy statement, the notice must be received by the Corporation at least 80 days prior to the date the Corporation intends to distribute its proxy statement with respect to such meeting. To be timely, a Stockholder’s notice given in the context of a special meeting of Stockholders shall be delivered to or mailed and received at the principal executive office of the Corporation not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such special meeting. For purposes of the foregoing, “public announcement” means the disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service, or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. Any meeting of Stockholders which is adjourned and will reconvene within 30 days after the meeting date as originally noticed shall, for purposes of any notice contemplated by this paragraph (b), be deemed to be a continuation of the original meeting and no nominations by a Stockholder of persons to be elected directors of the Corporation may be made at any such reconvened meeting other than pursuant to a notice that was timely for the meeting on the date originally noticed.

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     (c) Each notice given by a Stockholder as contemplated by paragraph (b) above shall set forth the following information, in addition to any other information or matters required by the Certificate of Incorporation:
          (i) as to each person whom the Stockholder proposes to nominate for election or re-election as a director, (A) the exact name of such person, (B) such person’s age, principal occupation, business address and telephone number and residence address and telephone number, (C) the number of shares (if any) of each class of stock of the Corporation owned directly or indirectly by such person and (D) all other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act or any successor regulation thereto (including such person’s notarized written acceptance of such nomination, consent to being named in the proxy statement as a nominee and statement of intention to serve as a director if elected);
          (ii) as to the Stockholder giving the notice, (A) his name and address, as they appear on the Corporation’s books, (B) his principal occupation, business address and telephone number and residence address and telephone number, (C) the class and number of shares of the Corporation which are held of record or beneficially owned by him and (D) the dates upon which he acquired such shares of stock and documentary support for any claims of beneficial ownership; and
          (iii) a description of all arrangements or understandings between the Stockholder giving the notice and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such Stockholder.
At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation that information required to be set forth in a Stockholder’s notice of nomination which pertains to the nominee.
     (d) The foregoing right of a Stockholder to nominate a person for election or reelection to the Board of Directors shall be subject to such conditions, restrictions and limitations as may be imposed by the Certificate of Incorporation.
     (e) Nothing in this Section 3.6 shall be deemed to affect any rights of Stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 of the Exchange Act.
     (f) The chairman of a meeting of Stockholders shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in this Section 3.6 and, if any nomination is not in compliance with this Section 3.6, to declare that such defective nomination shall be disregarded.
     SECTION 3.7 RESIGNATIONS. Any director may resign at any time by giving notice, either written or by electronic communications, to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall

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have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office for the unexpired portion of the term of the director whose place shall be vacated and until his successor shall have been duly elected and qualified.
     SECTION 3.8 REMOVAL. No director may be removed before the expiration of his term of office except for cause and then only by the affirmative vote of the holders of not less than a majority of the voting power of all outstanding Voting Stock, voting together as a single class. The Board of Directors may not remove any director, and no recommendation by the Board of Directors that a director be removed may be made to the Stockholders unless such recommendation is set forth in a resolution adopted by the affirmative vote of not less than 66-2/3% of the directors.
     SECTION 3.9 VACANCIES. (a) In case any vacancy shall occur on the Board of Directors because of death, resignation or removal, such vacancy may be filled by a majority of the directors remaining in office (though less than a quorum) or by the sole remaining director. The director so appointed shall serve for the unexpired term of his predecessor or until his successor is elected and qualified or until his earlier death, resignation or removal. If there are no directors then in office, an election of directors may be held in the manner provided by applicable law.
     (b) Any newly-created directorship resulting from any increase in the number of authorized directors may be filled by a majority of the directors then in office (though less than a quorum), or by the sole remaining director. The director so appointed shall be assigned to such class of directors as such majority of directors, or the sole remaining director, as the case may be, shall determine; provided however, that newly-created directorships shall be apportioned among the classes of directors so that all classes will be as nearly equal in number as possible. Each director so appointed shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal.
     (c) Except as expressly provided in these Bylaws or the Certificate of Incorporation or as otherwise provided by law, Stockholders shall not have any right to fill vacancies on the Board of Directors, including newly-created directorships.
     (d) If, as a result of a disaster or emergency (as determined in good faith by the then remaining directors), it becomes impossible to ascertain whether or not vacancies exist on the Board of Directors, and a person is, or persons are, elected by the directors, who in good faith believe themselves to be a majority of the remaining directors, or the sole remaining director, to fill a vacancy or vacancies that such remaining directors in good faith believe exists, then the acts of such person or persons who are so elected as directors shall be valid and binding upon the Corporation and the Stockholders, although it may subsequently develop that at the time of the election (i) there was in fact no vacancy or vacancies existing on the Board of Directors or (ii) the directors, or the sole remaining director, who so elected such person or persons did not in fact constitute a majority of the remaining directors.
     SECTION 3.10 SUBJECT TO RIGHTS OF HOLDERS OF PREFERRED STOCK. Notwithstanding the foregoing provisions of this Article III, if the resolutions of the Board of

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Directors creating any series of preferred stock of the Corporation entitle the holders of such preferred stock, voting separately by series, to elect additional directors under specified circumstances, then all provisions of such resolutions relating to the nomination, election, term of office, removal, filling of vacancies and other features of such directorships shall, as to such directorships, govern and control over any conflicting provisions of this Article III.
     SECTION 3.11 COMPENSATION. The Board of Directors shall have the authority to fix, and from time to time to change, the compensation of directors. Each director shall be entitled to reimbursement from the Corporation for his reasonable expenses incurred in attending meetings of the Board of Directors (or any committee thereof) and meetings of the Stockholders. Nothing contained in these Bylaws shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
BOARD OF DIRECTORS — MEETINGS AND ACTIONS
     SECTION 4.1 PLACE OF MEETINGS. The directors may hold their meetings and have one or more offices, and keep the books of the Corporation, in such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine.
     SECTION 4.2 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such time and place, within or without the State of Delaware, as shall from time to time be determined by the Board of Directors. Except as otherwise provided by applicable law, any business may be transacted at any regular meeting of the Board of Directors.
     SECTION 4.3 SPECIAL MEETINGS. Special meetings of the Board of Directors shall be called by the Secretary at the request of the Chairman of the Board (if any) or the Chief Executive Officer on not less than 24 hours’ notice to each director, specifying the time, place and purpose of the meeting. Special meetings shall be called by the Secretary on like notice at the request, in writing or by electronic communication, of any two directors, which request shall state the purpose of the meeting.
     SECTION 4.4 QUORUM; VOTING. (a) At all meetings of the Board of Directors, a majority of the directors shall be necessary and sufficient to constitute a quorum for the transaction of business. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time (without notice other than announcement at the meeting) until a quorum shall be present. A meeting of the Board of Directors at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors; provided, however, that no action of the remaining directors shall constitute the act of the Board of Directors unless the action is approved by at least a majority of the required quorum for the meeting or such greater number of directors as shall be required by applicable law, by the Certificate of Incorporation or by these Bylaws.
     (b) The act of a majority of the directors present at any meeting of the Board of Directors at which there is a quorum shall be the act of the Board of Directors unless, by express provision

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of law, the Certificate of Incorporation, or these Bylaws, a different vote is required, in which case such express provision shall govern and control.
     SECTION 4.5 CONDUCT OF MEETINGS. At meetings of the Board of Directors, business shall be transacted in such order as shall be determined by the chairman of the meeting unless the Board of Directors shall otherwise determine the order of business. The Board of Directors shall keep regular minutes of its proceedings which shall be placed in the minute book of the Corporation.
     SECTION 4.6 PRESUMPTION OF ASSENT. A director who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to such action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his dissent, either in writing or by electronic communication, to such action with the person acting as secretary of the meeting before the adjournment thereof or shall forward any dissent by certified or registered mail to the Secretary immediately after the adjournment of the meeting. Such right to dissent shall not apply to any director who voted in favor of such action.
     SECTION 4.7 ACTION WITHOUT MEETING. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all directors consent thereto in writing. All such written consents shall be filed with the minutes of proceedings of the Board of Directors.
     SECTION 4.8 TELEPHONIC MEETINGS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
     SECTION 5.1 EXECUTIVE COMMITTEE. (a) The Board of Directors may, by resolution adopted by the affirmative vote of a majority of the directors, designate an Executive Committee which, during the intervals between meetings of the Board of Directors and subject to Section 5.11, shall have and may exercise, in such manner as it shall deem to be in the best interests of the Corporation, all of the powers of the Board of Directors in the management or direction of the business and affairs of the Corporation, except as reserved to the Board of Directors or as delegated by the Board of Directors to another committee of the Board of Directors or as may be prohibited by law. The Executive Committee shall consist of not less than two directors, the exact number to be determined from time to time by the affirmative vote of a majority of the directors. None of the members of the Executive Committee need be an officer of the Corporation.

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     (b) Meetings of the Executive Committee may be called at any time by the Chairman of the Board (if any) or the Chief Executive Officer on not less than one day’s notice to each member given verbally or in writing, which notice shall specify the time, place and purpose of the meeting.
     SECTION 5.2 OTHER COMMITTEES. The board of directors may, by resolution adopted by a majority of the directors, establish additional standing or special committees of the Board of Directors, each of which shall consist of two or more directors (the exact number to be determined from time to time by the Board of Directors) and, subject to Section 5.11, shall have such powers and functions as may be delegated to it by the Board of Directors. No member of any such additional committee need be an officer of the Corporation.
     SECTION 5.3 TERM. Each member of a committee of the Board of Directors shall serve as such until the earliest of (i) his death, (ii) the expiration of his term as a director, (iii) his resignation as a member of such committee or as a director and (iv) his removal as a member of such committee or as a director.
     SECTION 5.4 COMMITTEE CHANGES; REMOVAL. The Board of Directors shall have the power at any time to fill vacancies in, to change the membership of, and to abolish any committee of the Board of Directors; provided, however, that no such action shall be taken in respect of the Executive Committee unless approved by a majority of the directors.
     SECTION 5.5 ALTERNATE MEMBERS. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If no alternate members have been so appointed or each such alternate committee member is absent or disqualified, the committee member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member.
     SECTION 5.6 RULES AND PROCEDURES. (a) The Board of Directors may designate one member of each committee as chairman of such committee; provided, however, that, except as provided in the following sentence, no person shall be designated as chairman of the Executive Committee unless approved by a majority of the directors. If a chairman is not so designated for any committee, the members thereof shall designate a chairman.
     (b) Each committee shall adopt its own rules (not inconsistent with these Bylaws or with any specific direction as to the conduct of its affairs as shall have been given by the Board of Directors) governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules.
     (c) If a committee is comprised of an odd number of members, a quorum shall consist of a majority of that number. If a committee is comprised of an even number of members, a quorum shall consist of one-half of that number. If a committee is comprised of two members, a quorum shall consist of both members. If a quorum is not present at a meeting of any committee, a majority of the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. The act of a majority of

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the members present at any meeting at which a quorum is in attendance shall be the act of a committee, unless the act of a greater number is required by law, the Certificate of Incorporation, these Bylaws or the committee’s rules as adopted in Section 5.6(b).
     (d) Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when requested.
     (e) Unless otherwise provided by these Bylaws or by the rules adopted by any committee, notice of the time and place of each meeting of such committee shall be given to each member of such committee as provided in these Bylaws with respect to notices of special meetings of the Board of Directors.
     SECTION 5.7 PRESUMPTION OF ASSENT. A member of a committee of the Board of Directors who is present at a meeting of such committee at which action on any corporate matter is taken shall be presumed to have assented to such action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his dissent, in writing or by electronic communication, to such action with the person acting as secretary of the meeting before the adjournment thereof or shall forward any dissent by certified or registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
     SECTION 5.8 ACTION WITHOUT MEETING. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting if all members of such committee consent thereto in writing or by electronic communication. All such consents shall be filed with the minutes of proceedings of such committee.
     SECTION 5.9 TELEPHONIC MEETINGS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of any committee of the Board of Directors may participate in a meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
     SECTION 5.10 RESIGNATIONS. Any committee member may resign at any time by giving notice, in writing or by electronic communication, to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective.
     SECTION 5.11 LIMITATIONS ON AUTHORITY. Unless otherwise provided in the Certificate of Incorporation, no committee of the Board of Directors shall have the power or authority to (i) authorize an amendment to the Certificate of Incorporation, (ii) adopt an agreement of merger or consolidation, recommend to the Stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, (iii) recommend to the Stockholders a dissolution of the Corporation or a revocation of a dissolution, (iv) amend these Bylaws, (v) declare a dividend or other distribution on, or authorize the issuance, purchase

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or redemption of, securities of the Corporation, (vi) elect any officer of the Corporation or (vii) approve any material transaction between the Corporation and one or more of its directors, officers or employees or between the Corporation and any corporation, partnership, association or other organization in which one or more of its directors, officers or employees are directors or officers or have a financial interest; provided, however, that the Executive Committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of preferred stock adopted by the Board of Directors as provided in the Certificate of Incorporation, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the decrease or increase of the shares of any such series.
ARTICLE VI
OFFICERS
     SECTION 6.1 NUMBER; TITLES; QUALIFICATION; TERM OF OFFICE. (a) The officers of the Corporation shall be a Chief Executive Officer, a President, a Chief Scientific Officer, a Secretary and a Treasurer. The Board of Directors from time to time may also elect such other officers (including, without limitation, a Chairman of the Board, Chief Financial Officer and one or more Vice Presidents) as the Board of Directors deems appropriate or necessary. Each officer shall hold office until his successor shall have been duly elected and shall have been qualified or until his earlier death, resignation or removal. Any two or more offices may be held by the same person, but no officer shall execute any instrument in more than one capacity if such instrument is required by law or any act of the Corporation to be executed or countersigned by two or more officers. None of the officers need be a Stockholder or a resident of the State of Delaware. No officer (other than the Chairman of the Board, if any) need be a director.
     (b) The Board of Directors may delegate to the Chairman of the Board (if any) and/or the Chief Executive Officer the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix their duties as such appointees. However, no such divisional or departmental vice presidents shall be considered an officer of the Corporation, the officers of the Corporation being limited to those officers elected by the Board of Directors.
     SECTION 6.2 ELECTION. At the first meeting of the Board of Directors after each annual meeting of Stockholders at which a quorum shall be present, the Board of Directors shall elect the officers of the Corporation.
     SECTION 6.3 REMOVAL. Any officer may be removed, either with or without cause, by the Board of Directors; provided, however, that (i) the Chairman of the Board (if any) and the Chief Executive Officer may be removed only by the affirmative vote of a majority of the directors and (ii) the removal of any officer shall be without prejudice to the contract rights, if any, of such officer. Election or appointment of an officer shall not of itself create contract rights.

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     SECTION 6.4 RESIGNATIONS. Any officer may resign at any time by giving notice, in writing or by electronic communication, to the Board of Directors, the Chairman of the Board (if any) or the Chief Executive Officer. Any such resignation shall take effect on receipt of such notice or at any later time specified therein. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any such resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
     SECTION 6.5 VACANCIES. If a vacancy shall occur in any office because of death, resignation, removal, disqualification or any other cause, the Board of Directors may elect or appoint a successor to fill such vacancy for the remainder of the term.
     SECTION 6.6 SALARIES. The salaries of all officers of the Corporation shall be fixed by the Board of Directors or pursuant to its direction, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation.
     SECTION 6.7 CHAIRMAN OF THE BOARD. The Chairman of the Board (if any) shall have all powers and shall perform all duties incident to the office of Chairman of the Board and such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. The Chairman of the Board, if present, shall preside at all meetings of the Board of Directors and of the Stockholders. During the time of any vacancy in the office of Chief Executive Officer or in the event of the absence or disability of the Chief Executive Officer, the Chairman of the Board shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.7 for the exercise by the Chairman of the Board of the powers of the Chief Executive Officer.
     SECTION 6.8 CHIEF EXECUTIVE OFFICER. (a) The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors, shall have general supervision, direction and control of the business and officers of the Corporation with all such powers as may be reasonably incident to such responsibilities. He shall have the general powers and duties of management usually vested in the chief executive officer of a corporation.
     (b) During the time of any vacancy in the office of the Chairman of the Board or in the event of the absence or disability of the Chairman of the Board, the Chief Executive Officer shall have the duties and powers of the Chairman of the Board unless otherwise determined by the Board of Directors. During the time of any vacancy in the office of President or in the event of the absence or disability of the President, the Chief Executive Officer shall have the duties and powers of the President unless otherwise determined by the Board of Directors. In no event shall any third party having any dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.8 for the exercise by the Chief Executive Officer of the powers of the Chairman of the Board or the President.
     SECTION 6.9 PRESIDENT. (a) The President shall be the chief operating officer of the Corporation and, subject to the supervision, direction and control of the Chief Executive

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Officer and the Board of Directors, shall manage the day-to-day operations of the Corporation. He shall have the general powers and duties of management usually vested in the chief operating officer of a corporation and such other powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or these Bylaws.
     (b) During the time of any vacancy in the offices of the Chairman of the Board and Chief Executive Officer or in the event of the absence or disability of the Chairman of the Board and the Chief Executive Officer, the President shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. In no event shall any third party having any dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.9 for the exercise by the President of the powers the Chief Executive Officer.
     SECTION 6.10 CHIEF SCIENTIFIC OFFICER. The Chief Scientific Officer shall be the chief scientific officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors and President, shall have general supervision, direction and control of the Corporation’s scientific endeavors with all such powers as may be reasonably incident to such responsibilities. He shall have the general powers and duties of management usually vested in the chief scientific officer of a corporation.
     SECTION 6.11 VICE PRESIDENTS. In the absence or disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the President, shall perform all the duties of the President as chief operating officer of the Corporation, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President as chief operating officer of the Corporation. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.11 for the exercise by any Vice President of the powers of the President as chief operating officer of the Corporation. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer or the President.
     SECTION 6.12 TREASURER. The Treasurer shall (i) have custody of the Corporation’s funds and securities, (ii) keep full and accurate account of receipts and disbursements, (iii) deposit all monies and valuable effects in the name and to the credit of the Corporation in such depository or depositories as may be designated by the Board of Directors and (iv) perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer.
     SECTION 6.13 ASSISTANT TREASURERS. Each Assistant Treasurer shall have such powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or the President. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the President (or, in the absence of such designation, the Treasurer) shall perform the duties and exercise the powers of the Treasurer during the period of such absence or disability. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.13 for the exercise by any Assistant Treasurer of the powers of the Treasurer under these Bylaws.

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     SECTION 6.14 SECRETARY. (a) The Secretary shall keep or cause to be kept, at the principal office of the Corporation or such other place as the Board of Directors may order, a book of minutes of all meetings and actions of the Board of Directors, committees of the Board of Directors and Stockholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at meetings of the Board of Directors and committees thereof, the number of shares present or represented at Stockholders’ meetings and the proceedings thereof.
     (b) The Secretary shall keep, or cause to be kept, at the principal office of the Corporation or at the office of the Corporation’s transfer agent or registrar, a share register, or a duplicate share register, showing the names of all Stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same and the number and date of cancellation of every certificate surrendered for cancellation.
     (c) The Secretary shall give, or cause to be given, notice of all meetings of the Stockholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the Corporation, if one be adopted, in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board (if any), the Chief Executive Officer, the President or these Bylaws.
     (d) The Secretary may affix the seal of the Corporation, if one be adopted, to contracts of the Corporation.
     SECTION 6.15 ASSISTANT SECRETARIES. Each Assistant Secretary shall have such powers and duties as may be assigned to him by the Board of Directors, the Chairman of the Board (if any), the Chief Executive Officer or the President. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the President (or, in the absence of such designation, the Secretary) shall perform the duties and exercise the powers of the Secretary during the period of such absence or disability. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.15 for the exercise by any Assistant Secretary of the powers of the Secretary under these Bylaws.
ARTICLE VII
STOCK
     SECTION 7.1 CERTIFICATES. Certificates for shares of stock of the Corporation shall be in such form as shall be approved by the Board of Directors. The certificates shall be signed (i) by the Chairman of the Board (if any), the Chief Executive Officer, the President or a Vice President and (ii) by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer.
     SECTION 7.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures on the certificates may be a facsimile and the seal of the Corporation (or a facsimile thereof), if one has been adopted, may be affixed thereto. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon, a certificate shall have ceased to be

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such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
     SECTION 7.3 LEGENDS. The Board of Directors shall have the power and authority to provide that certificates representing shares of stock of the Corporation bear such legends and statements (including, without limitation, statements relating to the powers, designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of the shares represented by such certificates) as the Board of Directors deems appropriate in connection with the requirements of federal or state securities laws or other applicable laws.
     SECTION 7.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors, the Secretary and the Treasurer each may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, in each case upon the making of an affidavit of that fact by the owner of such certificate, or his legal representative. When authorizing such issue of a new certificate or certificates, the Board of Directors, the Secretary or the Treasurer, as the case may be, may, in its or his discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as the Board of Directors, the Secretary or the Treasurer, as the case may be, shall require and/or to furnish the Corporation a bond in such form and substance and with such surety as the Board of Directors, the Secretary or the Treasurer, as the case may be, may direct as indemnity against any claim, or expense resulting from any claim, that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
     SECTION 7.5 TRANSFERS OF SHARES. Shares of stock of the Corporation shall be transferable only on the books of the Corporation by the holders thereof in person or by their duly authorized attorneys or legal representatives. Upon surrender to the Corporation, or the transfer agent of the Corporation, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation or its transfer agent shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon the Corporation’s books. Notwithstanding the foregoing, the Corporation will not register (and will instruct its transfer agent or registrar not to register) any transfer of shares of stock of the Corporation which are issued or sold pursuant to Regulation S under the Securities Act of 1933, as amended (the “Securities Act”) unless such transfer is made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act. The Board of Directors may from time to time determine whether a transfer of shares of stock of the Corporation is made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act. In making its determination, the Board of Directors of the Corporation may require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable.

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     SECTION 7.6 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat the holder of record of any share of stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim or interest in such share on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as expressly provided by the laws of the State of Delaware.
     SECTION 7.7 REGULATIONS. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement of certificates for shares of stock of the Corporation. The Board of Directors may (i) appoint and remove transfer agents and registrars of transfers and (ii) require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers.
     SECTION 7.8 STOCK OPTIONS, WARRANTS, ETC. Unless otherwise expressly prohibited in the resolutions of the Board of Directors creating any class or series of preferred stock of the Corporation, the Board of Directors shall have the power and authority to create and issue (whether or not in connection with the issue and sale of any stock or other securities of the Corporation) warrants, rights or options entitling the holders thereof to purchase from the Corporation any shares of capital stock of the Corporation of any class or series or any other securities of the Corporation for such consideration and to such persons, firms or corporations as the Board of Directors, in its sole discretion, may determine, setting aside from the authorized but unissued stock of the Corporation the requisite number of shares for issuance upon the exercise of such warrants, rights or options. Such warrants, rights and options shall be evidenced by one or more instruments approved by the Board of Directors. The Board of Directors shall be empowered to set the exercise price, duration, time for exercise and other terms of such warrants, rights and operations; provided, however, that the consideration to be received for any shares of capital stock subject thereto shall not be less than the par value thereof.
ARTICLE VIII
INDEMNIFICATION
     SECTION 8.1 THIRD PARTY ACTIONS. The Corporation (i) shall, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or is or was threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as a director, officer or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (ii) may, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or is or was threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was an employee or agent of the Corporation or any of its direct or indirect subsidiaries or is or was

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serving at the request of the Corporation or any of its direct or indirect subsidiaries as an employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including counsel fees), judgments, fines and amounts paid or owed in settlement, actually and reasonably incurred by such person or rendered or levied against such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, in itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his conduct was unlawful. Any person seeking indemnification under this Section 8.1 shall be deemed to have met the standard of conduct required for such indemnification unless the contrary is established.
     SECTION 8.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation (i) shall, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or who is or was threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as a director, officer or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (ii) may, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or who is or was threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an employee or agent of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as an employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including counsel fees) actually and reasonably incurred by such person in connection with the defense or settlement or such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification.
     SECTION 8.3 EXPENSES. Expenses incurred by a director or officer of the Corporation or any of its direct or indirect subsidiaries in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses incurred by other employees and agents of the Corporation and other persons eligible for indemnification

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under this Article VIII may be paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
     SECTION 8.4 NON-EXCLUSIVITY. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any provision of law, the Certificate of Incorporation, the certificate of incorporation or bylaws or other governing documents of any direct or indirect subsidiary of the Corporation, under any agreement, vote of Stockholders or disinterested directors or under any policy or policies of insurance maintained by the Corporation on behalf of any person or otherwise, both as to action in his official capacity and as to action in another capacity while holding any of the positions or having any of the relationships referred to in this Article VIII.
     SECTION 8.5 ENFORCEABILITY. The provisions of this Article VIII (i) are for the benefit of, and may be enforced directly by, each director or officer of the Corporation the same as if set forth in their entirety in a written instrument executed and delivered by the Corporation and such director or officer and (ii) constitute a continuing offer to all present and future directors and officers of the Corporation. The Corporation, by its adoption of these Bylaws, (A) acknowledges and agrees that each present and future director and officer of the Corporation has relied upon and will continue to rely upon the provisions of this Article VIII in becoming, and serving as, a director or officer of the Corporation or, if requested by the Corporation, a director, officer or fiduciary or the like of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, (B) waives reliance upon, and all notices of acceptance of, such provisions by such directors and officers and (C) acknowledges and agrees that no present or future director or officer of the Corporation shall be prejudiced in his right to enforce directly the provisions of this Article VIII in accordance with their terms by any act or failure to act on the part of the Corporation.
     SECTION 8.6 INSURANCE. The Board of Directors may authorize, by a vote of the majority of the directors, the Corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VIII.
     SECTION 8.7 SURVIVAL. The provisions of this Article VIII shall continue as to any person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, executors, administrators, heirs, legatees and devisees of any person entitled to indemnification under this Article VIII.
     SECTION 8.8 AMENDMENT. No amendment, modification or repeal of this Article VIII or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future director or officer of the Corporation to be indemnified by the Corporation, nor the obligation of the Corporation to indemnify any such director or officer, under and in accordance with the provisions of this Article VIII as in effect immediately prior to

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such amendment, modification or repeal with respect to claims arising, in whole or in part, from a state of facts extant on the date of, or relating to matters occurring prior to, such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
     SECTION 8.9 DEFINITIONS. For purposes of this Article VIII, (i) reference to any person shall include the estate, executors, administrators, heirs, legatees and devisees of such person, (ii) “employee benefit plan” and “fiduciary” shall be deemed to include, but not be limited to, the meaning set forth in Section 1002, subsections 3(3) and 21(A), respectively, of the Employee Retirement Income Security Act of 1974, as amended, (iii) references to the judgments, fines and amounts paid or owed in settlement or rendered or levied shall be deemed to encompass and include excise taxes required to be paid pursuant to applicable law in respect of any transaction involving an employee benefit plan and (iv) references to the Corporation shall be deemed to include any predecessor corporation or entity and any constituent corporation or entity absorbed in a merger, consolidation or other reorganization of or by the Corporation which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents and fiduciaries so that any person who was a director, officer, employee, agent or fiduciary of such predecessor or constituent corporation or entity, or served at the request of such predecessor or constituent corporation or entity as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the Corporation as such person would have with respect to such predecessor or constituent corporation or entity if its separate existence had continued.
ARTICLE IX
NOTICES AND WAIVERS
     SECTION 9.1 METHODS OF GIVING NOTICES. Whenever, by applicable law, the Certificate of Incorporation or these Bylaws, notice is required to be given to any Stockholder, any director or any member of a committee of the Board of Directors and no provision is made as to how such notice shall be given, personal notice shall not be required and such notice may be given (i) in writing, by mail, postage prepaid, addressed to such Stockholder, director or committee member at his address as it appears on the books or (in the case of a Stockholder) the stock transfer records of the Corporation or (ii) by any other method permitted by law (including, but not limited to, overnight courier service, telegram, telex or telecopier). Any notice required or permitted to be given by mail shall be deemed to be delivered and given at the time when the same is deposited in the United States mail as aforesaid. Any notice required or permitted to be given by overnight courier service shall be deemed to be delivered and given one business day after delivery to such service with all charges prepaid and addressed as aforesaid. Any notice required or permitted to be given by telegram, telex or telecopy shall be deemed to be delivered and given at the time transmitted with all charges prepaid and addressed as aforesaid.
     SECTION 9.2 WAIVER OF NOTICE. Whenever any notice is required to be given to any Stockholder, director or member of a committee of the Board of Directors by applicable law, the Certificate of Incorporation, or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be

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equivalent to the giving of such notice. Attendance of a Stockholder (whether in person or by proxy), director or committee member at a meeting shall constitute a waiver of notice of such meeting, except where such person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE X
BENEFICIAL OWNERSHIP NOTICES
     SECTION 10.1 OWNERSHIP NOTICE. (a) Without prejudice to, and in addition to any other obligation to disclose stockholder ownership interests under applicable law, where a Stockholder either (i) to such Stockholder’s knowledge acquires an aggregate nominal value of a class or series of the Corporation’s shares of stock in which such Stockholder’s interest is equal to or more than 3% of the aggregate outstanding shares of that class of shares (a “Notifiable Interest”); (ii) ceases to have a Notifiable Interest; or (iii) becomes aware that such Stockholder has acquired a Notifiable Interest, or that such Stockholder has ceased to have a Notifiable Interest in which such Stockholder was previously interested, such Stockholder shall notify the Corporation in writing of such Stockholder’s interest.
     (b) Stockholders shall also notify the Corporation promptly following any increase or decrease in the percentage level of such Stockholder’s Notifiable Interest. Only percentage level changes equal to at least a whole number are required to be notified to the Corporation.
     (c) Any notification under this Section 10.1 shall identify the Stockholder so interested, the nature and extent of such Stockholder’s interest, and the date on which such Stockholder acquired or ceased to hold a Notifiable Interest or on which there was an increase or decrease in the percentage level of such Stockholder’s Notifiable Interest.
     SECTION 10.2 DISCLOSURE NOTICE. The Board of Directors may serve a disclosure notice (“Disclosure Notice”) in writing on any Stockholder whom the Board of Directors knows, or has reasonable cause to believe, to hold a Notifiable Interest, requiring such Stockholder to indicate in writing whether or not such Stockholder holds a Notifiable Interest and to provide the Board of Directors written information concerning such Stockholder’s beneficial ownership of and voting rights and powers of the shares of the Corporation’s stock held by such Stockholder.
     SECTION 10.3 EFFECT OF DISCLOSURE NOTICE. (a) If a Disclosure Notice has been served on a Stockholder and the Corporation has not received the information required in respect of the specified shares in writing within a period of fourteen days after the service of the Disclosure Notice, then the Board of Directors may determine to apply one or more of the following restrictions (the “Restrictions”):
          (i) the person holding the shares of the Corporation’s stock in the share register of the Corporation which comprises or includes the shares in relation to which the default occurred (all of the relevant number, as appropriate, of such shares being the “Default Shares”, which definition shall include any further shares of capital stock which are issued in respect of such shares and any other shares of capital stock of the Corporation held by such Stockholder) shall

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not (for so long as the default occurs), nor shall any transferee to whom any of such shares are transferred, be entitled to be present or to vote (either personally, or by proxy or otherwise) at an annual or special meeting or at a separate meeting of the holders of a class or series of shares, or to exercise any other right in relation to an annual or special meeting or a separate class meeting;
          (ii) no transfer the Default Shares shall be effective or shall be recognized by the Corporation; and
          (iii) no dividends or other sums which would otherwise be payable on or in respect of the Default Shares shall be paid to such Stockholder holding the Default Shares and, in circumstances where an offer of the right to elect to receive shares instead of cash in respect of a dividend is or has been made, an election made in respect of the Default Shares shall not be effective.
     (b) The Board of Directors may determine that one or more Restrictions imposed on Default Shares shall cease to apply at any time. If the Corporation receives the information required in the relevant Disclosure Notice, the Board of Directors shall, within seven days of receipt, determine that all Restrictions imposed on the Default Shares shall cease to apply. In addition, the Board of Directors may determine that all Restrictions imposed on the Default Shares shall cease to apply if the Corporation receives an executed and, if necessary, duly stamped instrument of transfer in respect of the Default Shares, which would otherwise be given effect to, by:
          (i) a sale of the Default Shares on the AIM market;
          (ii) acceptance of an offer to acquire all the shares of any class or series or classes or series in the Corporation (other than shares which at the date of the offer are already sold by the offeror), being an offer on terms which are the same in relation to all the shares to which the offer relates or, where such shares include shares of different classes, in relation to all the shares of each class; or
          (iii) a sale which is shown to the satisfaction of the Board of Directors to be a bona fide sale of the whole of the beneficial interest in the Default Shares to a person who is unconnected with the person or with another person appearing to be interested in the shares.
     (c) Where dividends or other sums payable on Default Shares are not paid as a result of Restrictions having been imposed, the dividends or other sums shall accrue and be payable (without interest) once the relevant Restrictions cease to apply to such Stockholder.
     (d) If the Board of Directors makes a determination as described in Section 10.3(b) above it shall notify the purported transferee as soon as practicable and any person may make representations in writing to the Board of Directors concerning the determination. Neither the Corporation nor the Board of Directors shall in any event be liable to any person as a result of the Board of Directors having imposed Restrictions, or failed to determine that Restrictions shall cease to apply, where the Board of Directors has acted in good faith.

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ARTICLE XI
MISCELLANEOUS PROVISIONS
     SECTION 11.1 DIVIDENDS. Subject to applicable law and the provisions of the Certificate of Incorporation, dividends may be declared by the Board of Directors at any meeting and may be paid in cash, in property or in shares of the Corporation’s capital stock. Any such declaration shall be at the discretion of the Board of Directors. A director shall be fully protected in relying in good faith upon the books of account of the Corporation or statements prepared by any of its officers as to the value and amount of the assets, liabilities or net profits of the Corporation or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared.
     SECTION 11.2 RESERVES. There may be created by the Board of Directors, out of funds of the Corporation legally available therefor, such reserve or reserves as the Board of Directors from time to time, in its absolute discretion, considers proper to provide for contingencies, to equalize dividends or to repair or maintain any property of the Corporation, or for such other purpose as the Board of Directors shall consider beneficial to the Corporation, and the Board of Directors may thereafter modify or abolish any such reserve in its absolute discretion.
     SECTION 11.3 CHECKS. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation shall be signed by such officer or officers or by such employees or agents of the Corporation as may be designated from time to time by the Board of Directors.
     SECTION 11.4 CORPORATE CONTRACTS AND INSTRUMENTS. Subject always to the specific directions of the Board of Directors, the Chairman of the Board (if any), the President, any Vice President, the Secretary or the Treasurer may enter into contracts and execute instruments in the name and on behalf of the Corporation. The Board of Directors and, subject to the specific directions of the Board of Directors, the Chairman of the Board (if any) or the President may authorize one or more officers, employees or agents of the Corporation to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
     SECTION 11.5 ATTESTATION. With respect to any deed, deed of trust, mortgage or other instrument executed by the Corporation through its duly authorized officer or officers, the attestation to such execution by the Secretary or an Assistant Secretary of the Corporation shall not be necessary to constitute such deed, deed of trust, mortgage or other instrument a valid and binding obligation of the Corporation unless the resolutions, if any, of the Board of Directors authorizing such execution expressly state that such attestation is necessary.
     SECTION 11.6 SECURITIES OF OTHER CORPORATIONS. The Chairman of the Board, the Chief Executive Officer, the President or any Vice President of the Corporation shall have the power and authority to transfer, endorse for transfer, vote, consent or take any other action with respect to any securities of another issuer which may be held or owned by the

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Corporation and to make, execute and deliver any waiver, proxy or consent with respect to any such securities.
     SECTION 11.7 FISCAL YEAR. The fiscal year of the Corporation shall be January 1 through December 31, unless otherwise fixed by the Board of Directors.
     SECTION 11.8 SEAL. The seal of the Corporation, if any, shall be such as from time to time may be approved by the Board of Directors.
     SECTION 11.9 INVALID PROVISIONS. If any part of these Bylaws shall be invalid or inoperative for any reason, the remaining parts, so far as is possible and reasonable, shall remain valid and operative.
     SECTION 11.10 HEADINGS. The headings used in these Bylaws have been inserted for administrative convenience only and shall not limit or otherwise affect any of the provisions of these Bylaws.
     SECTION 11.11 REFERENCES/GENDER/NUMBER. Whenever in these Bylaws the singular number is used, the same shall include the plural where appropriate. Words of any gender used in these Bylaws shall include the other gender where appropriate. In these Bylaws, unless a contrary intention appears, all references to Articles and Sections shall be deemed to be references to the Articles and Sections of these Bylaws.
     SECTION 11.12 AMENDMENTS. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the directors; provided, however, that no such action shall be taken at any special meeting of the Board of Directors unless notice of such action is contained in the notice of such special meeting. These Bylaws may not be altered, amended or rescinded, nor may new bylaws be adopted, by the Stockholders except by the affirmative vote of the holders of not less than 66-2/3% of the voting power of all outstanding Voting Stock, voting together as a single class. Each alteration, amendment or repeal of these Bylaws shall be subject in all respects to Section 8.7.
CERTIFICATE OF SECRETARY
     I, Alton L. Boynton, the duly appointed Secretary of Northwest Biotherapeutics, Inc., hereby certify that the foregoing Bylaws constitute the bylaws of Northwest Biotherapeutics, Inc. as adopted by the Board of Directors on June 15, 2007 to be effective as of June 22, 2007.
         
 
       
 
  Alton L. Boynton, Secretary    

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EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF THE SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF NORTHWEST BIOTHERAPEUTICS, INC.
Pursuant to Section 242 of the
General Corporation Law of the
State of Delaware
Northwest Biotherapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”),
DOES HEREBY CERTIFY:
That, by written action of the Board of Directors of the Corporation, a resolution was duly adopted, pursuant to Section 242 of the General Corporation Law of the State of Delaware, setting forth an amendment to the Certificate of Incorporation, as amended, of the Corporation and declaring such amendment to be advisable. The stockholders of the Corporation duly approved said proposed amendment by written consent in accordance with Sections 228 and 242 of the General Corporation Law of the State of Delaware, and written notice of such consent has been given to all stockholders who have not consented in writing to such amendment. The resolution setting forth the amendment is as follows:
RESOLVED: That Article IV, Section 1 of the Seventh Amended and Restated Certificate of Incorporation of the Corporation, be and hereby is amended to add the following as Section 1(e).
ARTICLE IV
(e) Effective 12:01 a.m. on June 19, 2007 (the “ Effective Time ”) all shares of shares of common stock of the Corporation (the “ Common Stock ”) issued and outstanding immediately prior to the Effective Time (“ Old Common Stock ”) shall be and hereby are automatically combined and reclassified without any action on the part of the holder thereof, as follows: Every fifteen shares of Old Common Stock shall be combined and reclassified (the “ Reverse Stock Split ”) as one share of issued and outstanding Common Stock (“ New Common Stock ”). The Corporation shall not issue fractional shares on account of the Reverse Stock Split and shall issue cash in lieu thereof. Following the Effective Time, each holder of Old Common Stock shall be entitled to receive upon surrender of such holder’s certificate(s) representing Old Common Stock (whether one or more, “ Old Certificates ”) for cancellation pursuant to procedures adopted by the Corporation, a certificate(s) representing the number of whole shares of New Common Stock (whether one or more, “ New Certificates ”) into which and for which the shares of Old Common Stock formerly represented by Old Certificates so surrendered are reclassified under the terms hereof. From and after the Effective Time, Old Certificates shall represent only the right to receive New Certificates. The Corporation shall not recognize on its stock record books any purported transfer of any fractional share of Common Stock of the Corporation.

 


 

Executed at Bothell, Washington, on June 19, 2007.
NORTHWEST BIOTHERAPEUTICS, INC.
         
By:
       
 
       
 
  Name:    
 
  Title:    

 

 

EXHIBIT 10.1
CONVERSION AGREEMENT
     This Conversion Agreement (this “ Agreement ”), is made and entered into as of June 15, 2007 by and among Northwest Biotherapeutics, Inc. , a Delaware corporation (the “ Company ”), Toucan Capital Fund II, L.P. , a Delaware limited partnership (“ T oucan Capital ”) and Toucan Partners, LLC , a Delaware limited liability company (“ Toucan Partners ”).
Recitals
      A.  Toucan Capital holds 32,500,000 shares of Series A Cumulative Convertible Preferred Stock (the “ Series A Preferred Stock ”), which have the voting powers, designations, preferences, protective provisions and other special rights, and qualifications, limitations and restrictions thereof set forth in the Certificate of Designations, Preferences and Rights of Series A Cumulative Convertible Preferred Stock (the “ Certificate of Designations of Series A Preferred Stock ”) of the Company. Toucan Capital also holds 4,816,863 shares of Series A-1 Cumulative Convertible Preferred Stock (the “ Series A-1 Preferred Stock ” and, together with the Series A Preferred Stock, the “ Preferred Stock ”), which have the voting powers, designations, preferences, protective provisions and other special rights, and qualifications, limitations and restrictions thereof set forth in the Certificate of Designations, Preferences and Rights of Series A-1 Cumulative Preferred Stock (the “ Certificate of Designations of Series A-1 Preferred Stock ” and, together with the Certificate of Designations of Series A Preferred Stock, the “ Certificates of Designation ”) of the Company.
      B . The Company desires to have Toucan relinquish the preferences, protective provisions and other special rights relating to the Series A and Series A-1 Preferred Stock, and the Company recognizes that such preferences, protective provisions and other special rights have substantial economic value.
     C.  Toucan is willing to accommodate the Company’s desire by converting its Series A and Series A-1 Preferred Stock into Common Stock, conditional upon the terms and conditions set forth herein, including, without limitation, the completion by the Company of a sale and issuance of Common Stock on the London AIM market totaling at least £10 million, no later than June 22, 2007, and Toucan Capital is providing written notice, contemplated by Section 5(D) of the Certificates of Designations, to the Company of such conversion by virtue of this Agreement.
      D . Toucan Capital and the Company desire to enter into an agreement with respect to the satisfaction of accrued and unpaid dividends on the Preferred Stock as of the time of the conversion of the Preferred Stock into Common Stock, subject to the terms and conditions set forth below.
      E.  In consideration for (i) Toucan Capital’s voluntary conversion of the Preferred Stock (excluding any accrued and unpaid dividends) into Common Stock as evidenced hereby, (ii) Toucan Capital’s voluntary elimination of a number of rights, preferences and protections associated with the Series A Preferred Stock and the Series A-1 Preferred Stock, including, without limitation, the liquidation preference entitling Toucan Capital to certain substantial cash payments, (iii) Toucan Capital’s voluntary agreement to amend its Warrants for Series A and Series A-1 Preferred Stock to provide that such Warrants shall cease to be exercisable for Series

 


 

A or Series A-1 Preferred Stock and shall be exercisable only for Common Stock, (iv) Toucan Partners’ voluntary agreement to amend certain notes and warrants to eliminate Toucan Partners’ existing rights to receive Series A-1 Preferred Stock under such notes and warrants, and provide that Toucan Partners shall receive Common Stock in lieu of Series A-1 Preferred Stock under such notes and warrants; (v) Toucan Partners’ voluntary elimination of a number of rights, preferences and protections associated with the Series A-1 Preferred Stock, including, without limitation, the liquidation preference entitling Toucan Partners to certain substantial cash payments, the Company is agreeing to issue additional shares of Common Stock to Toucan Capital and Toucan Partners upon conversion of the Preferred Stock described herein and execution of the amendments described herein, subject to the terms and conditions set forth below.
      E.  The parties also are agreeing hereby to provide for the amendment and termination of certain agreements pursuant to which Toucan Capital and Toucan Partners are voluntarily agreeing to relinquish certain rights, subject to the terms and conditions set forth below.
Agreement
      Now, therefore , in consideration of the foregoing premises and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1: PREFERRED STOCK CONVERSION, AND AMENDMENT OR ELIMINATION OF CERTAIN PREFERENCES, PROTECTIONS AND SPECIAL RIGHTS
1.1 Conversion of Preferred Stock. Effective as of the date on which the Company’s securities are admitted for trading on the Alternative Investments Market of the London Stock Exchange (the “ Admission Date ”), the 32,500,000 shares of Series A Preferred Stock represented by Certificate No. CPA-1 shall be converted on a fifteen-for-one (15:1) basis into 2,166,667 shares of Common Stock of the Company, as provided in Section 5(B) of the Certificate of Designations of Series A Preferred Stock. Effective as of the Admission Date, the 4,816,863 shares of Series A-1 Preferred Stock represented by Certificate No. CPA1-1 shall be converted on a fifteen-for-forty (15:40) basis into 12,844,968 shares of Common Stock of the Company, as provided in Section 5(B) of the Certificate of Designations of Series A-1 Preferred Stock. Accordingly, in the aggregate, effective as of the Admission Date, the shares of Preferred Stock held by Toucan Capital will be converted into an aggregate of 15,011,635 shares of Common Stock of the Company. The parties agree that the numbers of shares of Common Stock, per share prices and conversion ratios set forth in this Agreement give effect to the 1-for-15 reverse stock split of Common Stock to be effected between the date hereof and Admission.
1.2 Treatment of Accrued Dividends . Pursuant to Section 5(D) of the Certificates of Designation, Toucan Capital is entitled to receive, in cash or additional shares of stock, accrued and unpaid dividends on the Preferred Stock being converted into Common Stock on the Admission Date. Such dividends have accrued and will accrue from the date of issuance through the date of conversion into Common Stock. In consideration of Toucan Capital’s election to defer receipt of the satisfaction of such accrued and unpaid dividends on the Admission Date

 


 

(which are currently estimated to be approximately $1,251,791), as provided in the Certificates of Designation, the parties hereby agree as follows:
(a) On or prior to September 30, 2007, the Company may elect to pay some or all of the accrued and unpaid dividends in cash.
(b) To the extent that all accrued and unpaid dividend are not paid in cash on or prior to September 30, 2007, then on or after October 1, 2007, Toucan Capital may elect, in its sole discretion, to have the accrued and unpaid dividends satisfied, in whole or in part (including through a combination of the following), by either: (i) cash payment; (ii) a reduction in the exercise prices of any or all Toucan Capital Warrants, chosen in Toucan Capital’s sole discretion, such that the aggregate exercise price of such Toucan Capital Warrants is reduced by an amount equal to the amount of accrued and unpaid dividends being satisfied through such adjustment; or (iii) the issuance of shares of Common Stock on the basis of $0.60 per share (after giving effect to the 1-for-15 reverse stock split of Common Stock to be effected between the date hereof and Admission, and as further adjusted for stock splits, stock dividends, reverse stock splits and similar actions effected after the date of Admission).
1.3 Elimination of Liquidation Preferences . In connection with Toucan Capital’s voluntary conversion of the Preferred Stock (excluding any accrued and unpaid dividends) into Common Stock as provided herein and Toucan Capital’s voluntary elimination of a number of rights, preferences and protections associated with the Series A Preferred Stock and the Series A-1 Preferred Stock as provided herein, the liquidation preference entitling Toucan Capital to certain substantial cash payments shall terminate. In connection with Toucan Partners’ voluntary elimination of its existing rights to receive Series A-1 Preferred Stock under certain notes and warrants, and elimination of a number of rights, preferences and protections associated with the Series A-1 Preferred Stock, the liquidation preference entitling Toucan Partners to certain substantial cash payments shall terminate.
1.4 Delivery of Stock Certificates. Effective upon Admission, Toucan Capital agrees to deliver its original Preferred Stock certificates to the Company for cancellation, and the Company agrees to issue Common Stock certificates representing the shares described herein, duly registered on the books and records of the Company’s transfer agent, to Toucan Capital and Toucan Partners, as appropriate.
1.5 Termination of Amended and Restated Binding Term Sheet, As Amended. The parties hereby agree that, effective upon Admission, that certain Amended and Restated Binding Term Sheet dated as of October 22, 2004, by and between the Company and Toucan Capital, as amended through the date of this Agreement, shall terminate and be null and void and of no further effect.
1.6 Termination of Amended and Restated Recapitalization Agreement, As Amended. The parties agree that, effective upon Admission, they will enter into the Termination Agreement in the form attached hereto as Exhibit A .

 


 

1.7 Amendment and Restatement of Investor Rights Agreement. The parties agree that, effective upon Admission, they will enter into the Second Amended and Restated Investor Rights Agreement in the form attached hereto as Exhibit B .
1.8 Agreements with Respect to Promissory Notes of Toucan Partners. Toucan Partners hereby agrees that it will not convert any portion of its convertible promissory notes into securities of the Company before July 1, 2007. Toucan Partners further agrees that, after the Admission Date, it will not convert any portion of its convertible promissory notes into securities other than Common Stock. The Company hereby agrees that it will not repay any amount outstanding on any convertible promissory notes held by Toucan Partners before June 30, 2007.
1.9 Agreements with Respect to Warrant Exercises by Toucan Partners. Toucan Partners hereby agrees that (i) prior to the Admission Date, it will not exercise any of the warrants that it holds as of the date hereof (the “ Toucan Partners Warrants ”) to acquire any securities of the Company, and (ii) on or after the Admission Date, it will not exercise any of the Toucan Partners Warrants to acquire securities other than Common Stock.
1.10 Agreements with Respect to Warrant Exercises by Toucan Capital. Toucan Capital hereby agrees that (i) prior to the Admission Date, it will not exercise any of the warrants that it holds as of the date hereof (the “ Toucan Capital Warrants ”) to acquire any securities of the Company, and (ii) on or after the Admission Date, it will not exercise any of the Toucan Capital Warrants to acquire securities other than Common Stock.
SECTION 2: ISSUANCE OF COMMON STOCK TO TOUCAN CAPITAL AND TOUCAN PARTNERS
In consideration for the actions to be taken as provided in Section 1, effective upon Admission (and in addition to the shares of Common Stock to be issued pursuant to Section 1.1 hereof), the Company shall issue 4,287,851 additional shares of Common Stock to Toucan Capital, and 2,572,710 shares of Common Stock to Toucan Partners.
SECTION 3: CONTINGENT NATURE OF THIS AGREEMENT
All of the obligations of the parties hereto are conditioned on and subject to the placing of at least £10 million of the Company’s Common Stock (the “Placing”) and admission of the Company’s securities for trading on the Alternative Investments Market of the London Stock Exchange (“ Admission ”) on or before June 22, 2007. If the Placing and Admission do not occur on or before June 22, 2007, this Agreement will be null and void in its entirety.
SECTION 4: MISCELLANEOUS
4.1 Share Numbers. The parties agree that the numbers of shares of Common Stock, per share prices and conversion ratios set forth in this Agreement give effect to the 1-for-15 reverse stock split of Common Stock to be effected between the date hereof and Admission.
4.2 Governing Law. This Agreement shall be governed by the internal substantive laws of the State of Delaware, without giving effect to principles of conflict of laws thereunder, as if entered into by two residents of Delaware and to be performed entirely within Delaware.

 


 

4.3 Successors and Assigns. This Agreement shall be binding upon each of the parties hereto and their respective successors and assigns (if any).
4.4 Severability. In the event that any provision of this Agreement, or the application of any such provision to any person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
4.5 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of each of the parties hereto.
4.6 Notices. All notices and other communications which are required to be or may be given under this Agreement shall be effective upon delivery, if (i) delivered in person or by courier or by facsimile, (ii) mailed, certified first class mail, postage prepaid, return receipt requested, or (iii) if sent by e-mail to the parties hereto at the addresses, facsimile numbers and/or e-mail addresses set forth on the signature pages hereto or to such other address as any party shall have furnished to the other by notice given in accordance with this Section 4.6. Each party hereby consents to delivery of any and all corporate, stockholder and other notices from the Company by e-mail to the address below (or any subsequent address that such party notifies the Company of in accordance with this Section 4.6).
4.7 Counterparts. This Agreement may be signed in one or more counterparts, including facsimile counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
4.8 Toucan Partners Consent. To the extent required pursuant to the terms of the series of promissory notes, as amended, issued by the Company to Toucan Partners from November 14, 2005 through the date hereof, Toucan Partners hereby consents to the transactions contemplated herein.
[Signature Page Follows]

 


 

      In Witness Whereof , the parties have caused this Conversion Agreement to be executed and delivered as of the date first above written.
                     
Northwest Biotherapeutics, Inc.       Toucan Capital Fund II, L.P.    
 
                   
By:
          By:        
 
                   
 
       Alton Boynton                Linda F. Powers    
 
            President                Managing Director    
 
                   
 
       Address:                  Address :    
 
                   
 
       Northwest Biotherapeutics, Inc.                Linda F. Powers    
 
       Attention: Alton Boynton                Managing Director    
 
       18701 120th Avenue, NE,                Toucan Capital Corp.    
 
       Suite 101                7600 Wisconsin Ave, 7 th Floor    
 
       Bothell, Washington 98011                Bethesda, MD 20814    
 
       Facsimile: 425.608.3009                Facsimile: 240.497.4065    
 
                   E-Mail:lpowers@toucancapital.com    
 
                   
            Toucan Partners, LLC    
 
                   
 
          By:        
 
                   
 
                   Linda F. Powers    
 
                   Managing Member    
 
                   
 
                    Address:    
 
                   
 
                   Toucan Partners, LLC    
 
                   7600 Wisconsin Avenue    
 
                   Suite 700    
 
                   Bethesda, MD 20814    
 
                   Facsimile: 240.497.4065    
 
                   E-Mail:lpowers@toucancapital.com    
Counterpart Signature Page To Conversion Agreement

 


 

Exhibit A
TERMINATION AGREEMENT
Filed separately as Exhibit 10.2 of this filing.

 


 

Exhibit B
Form of Amended and Restated Investor Rights Agreement
     Filed separately as Exhibit 10.3 of this filing.

 

 

EXHIBIT 10.2
TERMINATION AGREEMENT
     This TERMINATION AGREEMENT is entered into and effective as of June 22, 2007.
RECITALS:
      WHEREAS , the parties hereto are parties to that certain Amended and Restated Recapitalization Agreement dated as of July 30, 2004 by and between the Company and Toucan Capital, as amended October 22, 2004, November 10, 2004, December 27, 2004, January 26, 2005, April 12, 2005, May 13, 2005, June 16, 2005, July 26, 2005, September 7, 2005 and November 14, 2005 (the “ Recapitalization Agreement ”).
      WHEREAS , the parties to the Recapitalization Agreement now desire to terminate the Recapitalization Agreement, subject to the survival of certain provisions thereof.
AGREEMENTS:
      NOW, THEREFORE , in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
     1. Each of the Company and Toucan Capital hereby terminate the Recapitalization Agreement. Each party acknowledges that there shall be no further obligations under the Recapitalization Agreement following the date hereof other than (a) rights related to breaches of the Recapitalization Agreement occurring prior to the date hereof, and (b) the following provisions: (i) Section 4.4 (Indemnification), (ii) Section 4.5 (Injunctive Relief), and (iii) Section 4.13 (Miscellaneous).
     2. This Termination may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument.
[Signature Page Follows]

 


 

      IN WITNESS WHEREOF , each of the parties hereto has executed this Termination Agreement as of the date set forth above.
                     
Northwest Biotherapeutics, Inc.       Toucan Capital Fund II, L.P.    
 
                   
By:
          By:        
 
                   
 
       Alton Boynton                Linda F. Powers    
 
            President                Managing Director    
 
                   
 
       Address:                  Address :    
 
                   
 
       Northwest Biotherapeutics, Inc.                Linda F. Powers    
 
       Attention: Alton Boynton                Managing Director    
 
       18701 120th Avenue, NE,                Toucan Capital Corp.    
 
       Suite 101                7600 Wisconsin Ave, 7 th Floor    
 
       Bothell, Washington 98011                Bethesda, MD 20814    
 
       Facsimile: 425.608.3009                Facsimile: 240.497.4065    
 
                   E-Mail:lpowers@toucancapital.com    
 
                   
            Toucan Partners, LLC    
 
                   
 
          By:        
 
                   
 
                   Linda F. Powers    
 
                   Managing Member    
 
                   
 
                    Address:    
 
                   
 
                   Toucan Partners, LLC    
 
                   7600 Wisconsin Avenue    
 
                   Suite 700    
 
                   Bethesda, MD 20814    
 
                   Facsimile: 240.497.4065    
 
                   E-Mail:lpowers@toucancapital.com    

 

 

EXHIBIT 10.3
NORTHWEST BIOTHERAPEUTICS, INC.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
      This Second Amended and Restated Investor Rights Agreement (the “ Agreement ”) is entered into as of the 22 nd day of June, 2007, by and between Northwest Biotherapeutics, Inc . , a Delaware corporation (the “ Company ”), Toucan Capital Fund II, L.P. (“ Toucan Capital ”) and Toucan Partners, LLC (“ Toucan Partners ” and, collectively with Toucan Capital, the “ Investors ”).
Recitals
      Whereas, Toucan Capital holds shares of the Company’s Series A Cumulative Convertible Preferred Stock (the “ Series A Stock ”) and Series A-1 Cumulative Convertible Preferred Stock (the “ Series A-1 Preferred Stock ” and, together with the Series A Stock, the “ Preferred Stock ”) and Toucan Capital is electing to convert all shares of Preferred Stock that it holds into shares of Common Stock of the Company, pursuant to that certain Conversion Agreement dated of even date herewith;
      Whereas , Toucan Partners will receive shares of Common Stock of the Company in conjunction with the Conversion Agreement and holds notes convertible into, and warrants exercisable for, additional shares of capital stock of the Company;
      Whereas , Toucan Capital and the Company are party to that certain Investor Rights Agreement (the “ Original Agreement ”), which was amended and restated in its entirety by the Amended and Restated Investor Rights Agreement (the “ Amended and Restated Agreement ”) on April 17, 2006;
      Whereas , the Conversion Agreement is conditioned upon the execution and delivery of this Agreement; and
      Whereas , in connection with the consummation of the Conversion Agreement, the parties desire to enter into this Agreement in order to further amend and restate the Amended and Restated Agreement, add Toucan Partners as a party to the agreement, and to provide Investors with the registration and other rights as set forth below, subject to the admission of the Company’s Common Stock for trading on AIM.
      Now, Therefore, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. GENERAL.
      1.1 Definitions. As used in this Agreement the following terms shall have the following respective meanings:
           (a) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 


 

           (b) “Form S-3” means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.
           (c) “Holder” means any person owning of record Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 2.10 hereof.
           (d) Notes ” shall mean those certain convertible promissory notes held by Toucan Partners that are convertible for shares of the Company’s capital stock.
           (e) “Register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document.
           (f) “Registrable Securities” means (a) Common Stock of the Company held by the Holders or issuable or issued upon conversion of the Notes and/or Warrants and (b) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such above-described securities. Notwithstanding the foregoing, Registrable Securities shall not include any securities (i) sold by a person to the public either pursuant to a registration statement or Rule 144, (ii) sold in a private transaction in which the transferor’s rights under Section 2 of this Agreement are not assigned or (iii) held by a Holder (together with its affiliates) if, as reflected on the Company’s list of stockholders, such Holder (together with its affiliates) holds less than 1% of the Company’s outstanding Common Stock (treating all shares of Preferred Stock on an as converted basis) and all shares of Common Stock of the Company issuable or issued upon conversion of the Shares held by and issuable to such Holder (and its affiliates) may be sold pursuant to Rule 144 during any ninety (90) day period.
           (g) “Registrable Securities then outstanding” shall be the number of shares of the Company’s Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to then exercisable or convertible securities.
           (h) “Registration Expenses” shall mean all expenses incurred by the Company in complying with Sections 2.2, 2.4 and 2.6 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, reasonable fees and disbursements not to exceed one hundred thousand dollars ($100,000) of a single special counsel for the Holders, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company).
           (i) “SEC” or “Commission” means the Securities and Exchange Commission.
           (j) “Securities Act” shall mean the Securities Act of 1933, as amended.

 


 

           (k) “Selling Expenses” shall mean all underwriting discounts and selling commissions applicable to the sale.
           (l) “Shares” shall mean the Company’s Common Stock issued pursuant to the Conversion Agreement held from time to time by the Investors and their permitted assigns and the Capital Stock issuable upon conversion of the Notes or exercise of the Warrants, and any additional shares of Common Stock acquired by the Investors after the date hereof (including additional shares of Common Stock of the Company directly or indirectly issuable upon conversion, exchange or exercise of any securities).
           (m) “Special Registration Statement” shall mean (i) a registration statement relating to any employee benefit plan or (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act, any registration statements related to the issuance or resale of securities issued in such a transaction or (iii) a registration related to stock issued upon conversion of debt securities.
           (n) Warrants ” shall mean those certain warrants to purchase capital stock of the Company held by Toucan Capital dated June 1, 2007 and those certain warrants to purchase capital stock of the Company held by Toucan Partners dated June 1, 2007, and any such additional warrants issued to Toucan Partners thereafter.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER .
      2.1 Restrictions on Transfer.
           (a) Each Holder agrees not to make any disposition of all or any portion of the Shares or Registrable Securities unless and until:
                (i)  there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
                (ii)  (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by the Company, such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act. The Company will not require any transferee pursuant to Rule 144 to be bound by the terms of this Agreement if the shares so transferred do not remain Registrable Securities hereunder following such transfer.
           (b) Notwithstanding the provisions of subsection (a) above, no such restriction shall apply to a transfer by a Holder that is (A) a partnership transferring to its partners or former partners in accordance with partnership interests, (B) a corporation transferring to an affiliate, (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company, (D) an individual transferring to the Holder’s family member or trust for the benefit of an individual Holder, or (E) any other party permitted under applicable federal and state securities laws; provided that in each case the transferee will agree in writing to be subject to the terms of this Agreement to the same extent as if he were an original Holder hereunder.

 


 

           (c) Each certificate representing Shares or Registrable Securities shall be stamped or otherwise imprinted with legends substantially similar to the following (in addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ ACT ”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
           (d) The Company shall be obligated to reissue promptly unlegended certificates at the request of any Holder thereof if the Holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company to the effect that the securities proposed to be disposed of may lawfully be so disposed of without registration, qualification and legend, provided that the second legend listed above shall be removed only at such time as the Holder of such certificate is no longer subject to any restrictions hereunder.
           (e) Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal.
      2.2 Demand Registration.
           (a) If holders of at least 20% of the Registrable Securities issued or issuable to the Holders (the “ Initiating Holders ”) request that the Company file a registration statement on Form SB-2 or Form S-1 (the “ Registration Statement ”) covering at least 10% of the Registrable Securities issued or issuable to the Holders (or any lesser percentage if the anticipated aggregate offering price would exceed $2,000,000), the Company shall cause the Registrable Securities to be registered.

 


 

           (b) If the Investor intends to distribute the Registrable Securities covered by their request by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however , that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
           (c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
                (i)  if the Company has effected two (2) registrations pursuant to this Section 2.2 in the preceding twelve (12) months, and such registrations have been declared or ordered effective; or
                (ii)  if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below and the Company undertakes promptly to file such Form S-3.
      2.3 Piggyback Registrations. The Company shall notify all Holders of Registrable Securities in writing at least fifteen (15) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Company (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding Special Registration Statements) and will afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within fifteen (15) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder.
     If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.

 


 

           (a) Underwriting. If the registration statement of which the Company gives notice under this Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to include Registrable Securities in a registration pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Agreement, if the underwriter reasonably determines, in good faith, that marketing factors require a limitation of the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis; provided, however, that no such reduction shall reduce the amount of securities of the selling Holders included in the registration below thirty percent (30%) of the total amount of securities included in such registration in accordance with the immediately preceding clause. In no event will shares of any other selling stockholder be included in such registration that would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than a majority of the Registrable Securities proposed to be sold in the offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder which is a partnership, limited liability company or corporation, the partners, retired partners, members, retired members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence.
      2.4 Form S-3 Registration. In case the Company shall receive from any Holder or Holders of Registrable Securities a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company will:
           (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders of Registrable Securities; and

 


 

           (b) as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however , that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4:
                (i)  if Form S-3 is not available for such offering by the Holders, or
                (ii)  if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than one million dollars ($1,000,000).
           (c) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the requests of the Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
      2.5 Expenses of Registration. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Section 2.2, 2.3 or 2.4 herein shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder, shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered. The Company shall not, however, be required to pay for expenses of any registration proceeding begun pursuant to Section 2.2 or 2.3, the request of which has been subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is based upon material adverse information concerning the Company of which the Initiating Holders were not aware at the time of such request or (b) the Holders of a majority of Registrable Securities agree to deem such registration to have been effected as of the date of such withdrawal for purposes of determining whether the Company shall be obligated pursuant to Section 2.2(c) to undertake any subsequent registration, in which event such right shall be forfeited by all Holders). If the Holders are required to pay the Registration Expenses, such expenses shall be borne by the holders of securities (including Registrable Securities) requesting such registration in proportion to the number of shares for which registration was requested. If the Company is required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above, then such registration shall not be deemed to have been effected for purposes of determining whether the Company shall be obligated pursuant to Section 2.2 to undertake any subsequent registration.
      2.6 Obligations of the Company. Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:
           (a) prepare and file within sixty (60) days of the receipt of a request for registration of Registrable Securities with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective within one hundred twenty (120) days of such request, and keep such registration statement effective until the Holder or Holders have completed the distribution related thereto.

 


 

           (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the period set forth in subsection (a) above.
           (c) Furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.
           (d) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
           (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
           (f) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company will amend or supplement such prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.
           (g) Use its best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters.

 


 

      2.7 Delay of Registration; Furnishing Information.
           (a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.
           (b) It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling Holders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities.
           (c) The Company shall have no obligation with respect to any registration requested pursuant to Section 2.2 or Section 2.4 if the number of shares or the anticipated aggregate offering price of the Registrable Securities to be included in the registration does not equal or exceed the number of shares or the anticipated aggregate offering price required to originally trigger the Company’s obligation to initiate such registration as specified in Section 2.2 or Section 2.4, whichever is applicable.
      2.8 Liquidated Damages. In the event that the Company shall fail to cause the Registration Statement to be timely filed, timely declared effective as provided herein, the Company shall pay as liquidated damages the amount of 1% per month of the aggregate purchase price for the securities to be sold pursuant to the Registration Statement (or such lesser amount that is the maximum permitted under applicable rules and regulations of the U.S. Small Business Administration (“ SBA ”)) provided, however , that in no event shall the aggregate liquidated damages exceed ten percent (10%) of the aggregate purchase price of the Registrable Securities proposed to be included in the Registration Statement.
      2.9 Indemnification. In the event any Registrable Securities are included in a registration statement under Sections 2.2, 2.3 or 2.4:
           (a) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers and directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) other than consequential losses of any kind, to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “ Violation ”) by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by

 


 

such registration statement; and the Company will reimburse each such Holder, partner, member, officer, director, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided however , that the indemnity agreement contained in this Section 2.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, member, officer, director, underwriter or controlling person of such Holder.
           (b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors or officers or any person who controls such Holder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, underwriter or other such Holder, or partner, director, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any of the following statements: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act (collectively, a “ Holder Violation ”), in each case to the extent (and only to the extent) that such Holder Violation occurs in reliance upon and in conformity with written information furnished by such Holder under an instrument duly executed by such Holder and stated to be specifically for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter or other Holder, or partner, officer, director or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Holder Violation; provided, however, that the indemnity agreement contained in this Section 2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided further , that in no event shall any indemnity under this Section 2.9 exceed the net proceeds from the offering received by such Holder.
           (c) Promptly after receipt by an indemnified party under this Section 2.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.9, deliver to the indemnifying party a written notice of the commencement

 


 

thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses thereof to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.9 to the extent, and only to the extent, prejudicial to its ability to defend such action, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.9.
           (d) If the indemnification provided for in this Section 2.9 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) or Holder Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided , that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder.
           (e) The obligations of the Company and Holders under this Section 2.9 shall survive completion of any offering of Registrable Securities in a registration statement and, with respect to liability arising from an offering to which this Section 2.9 would apply that is covered by a registration filed before termination of this Agreement, such termination. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
           (f) Notwithstanding any of the foregoing provisions of this Section 2.9, no party shall be entitled to indemnification against any consequential damages.
      2.10 Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of Registrable Securities (for so long as such shares remain Registrable Securities) that (a) is a subsidiary, parent, general partner, limited partner, retired partner, member or retired member, or stockholder of a Holder that is a corporation, partnership or limited liability

 


 

company, (b) is a Holder’s family member or trust for the benefit of an individual Holder, (c) acquires at least one million (1,000,000) shares of Registrable Securities (as adjusted for stock splits and combinations); (d) is an entity affiliated by common control (or other related entity) with such Holder, or (e) is any other permitted assignee or transferee under applicable federal and state securities laws, provided, however, (i) the transferor shall, within ten (10) days after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement.
      2.11 Limitation on Subsequent Registration Rights. Without the consent of the holders of a majority of the Registrable Securities, after the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company that would grant such holder rights to demand the registration of shares of the Company’s capital stock, or to include such shares in a registration statement that would reduce the number of shares includable by the Holders.
      2.12 Agreement to Furnish Information. If requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, each Holder shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section 2.12 shall not apply to a Special Registration Statement. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of said day period. Each Holder agrees that any transferee of any shares of Registrable Securities shall be bound by this Section 2.12. The underwriters of the Company’s stock are intended third party beneficiaries of this Section 2.12 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.
      2.13 Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its best efforts to:
           (a) Make and keep public information available, as those terms are understood and defined in SEC Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public;
           (b) File with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and
           (c) So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 of the Securities Act, and of the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of the Company filed with the Commission; and such other reports and documents as a Holder may reasonably request in connection with availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.

 


 

SECTION 3. COVENANTS OF THE COMPANY .
      3.1 Qualified Small Business. The Company will use best efforts to comply with the reporting and recordkeeping requirements of Section 1202 of the Internal Revenue Code of 1986, as amended (the “Code” ), any regulations promulgated thereunder and any similar state laws and regulations and agrees not to repurchase any stock of the Company if such repurchase would cause the Shares not to so qualify as “Qualified Small Business Stock,” so long as the Company’s Board of Directors determines that it is in the best interests of and not unduly burdensome to the Company to comply with the provisions of Section 1202 of the Code.
3.2 Certain Covenants Relating to SBA Matters.
           (a) Use of Proceeds. The Company has used, and shall continue to use, the proceeds from the sale of the Preferred Stock (the “Proceeds”) for its growth, modernization or expansion. The Company shall provide each Investor which is a licensed Small Business Investment Company (an “ SBIC Investor ”) and the SBA reasonable access to the Company’s books and records for the purpose of confirming the use of Proceeds.
           (b) Business Activity. For so long as any SBIC Investor holds any securities of the Company, the Company shall not change the nature of its business activity if such change would render the Company ineligible as provided in 13 C.F.R. Section 107.720.
           (c) Compliance. So long as any SBIC Investor holds any securities of the Company, the Company will at all times comply with the non-discrimination requirements of 13 C.F.R. Parts 112, 113 and 117.
           (d) Information for SBIC Investor. Within forty five (45) days after the end of each fiscal year and at such other times as an SBIC Investor may reasonably request, the Company shall deliver to such SBIC Investor a written assessment, in form and substance reasonably satisfactory to such SBIC Investor, of the economic impact of such SBIC Investor’s financing specifying the full-time equivalent jobs created or retained in connection with such investment, and the impact of the financing on the Company’s business in terms of profits and on taxes paid by the Company and its employees. Upon request, the Company agrees to promptly provide each SBIC Investor with sufficient information to permit such Investor to comply with their obligations under the Small Business Investment Act of 1958, as amended, and the regulations promulgated thereunder and related thereto; provided, however, each SBIC Investor agrees that it will protect any information which the Company labels as confidential to the extent permitted by law. Any submission of any financial information under this Section shall include a certificate of the Company’s president, chief executive officer, treasurer or chief financial officer.
           (e) Number of Holders of Voting Securities. So long as any SBIC Investor holds any securities purchased pursuant to the Purchase Agreement or issued by the Company with respect thereto, the Company shall notify each SBIC Investor (i) at least fifteen (15) days prior to taking any action after which the number of record holders of the Company’s voting

 


 

securities would be increased from fewer than fifty (50) to fifty (50) or more, and (ii) of any other action or occurrence after which the number of record holders of the Company’s voting securities was increased (or would increase) from fewer than fifty (50) to fifty (50) or more, as soon as practicable after the Company becomes aware that such other action or occurrence has occurred or is proposed to occur.
SECTION 4. MISCELLANEOUS .
      4.1 Effectiveness of this Agreement. This Agreement shall be effective immediately upon Admission.
      4.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware in all respects as such laws are applied to agreements among Delaware residents entered into and to be performed entirely within Delaware, without reference to conflicts of laws or principles thereof. The parties agree that any action brought by either party under or in relation to this Agreement, including without limitation to interpret or enforce any provision of this Agreement, shall be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the County of Wilmington, Delaware.
      4.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors, and administrators and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however , that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price.
      4.4 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement.
      4.5 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
4.6 Amendment and Waiver.
           (a) Except as otherwise expressly provided, this Agreement may be amended or modified, and the obligations of the Company and the rights of the Holders under this Agreement may be waived, only upon the written consent of the Company and the holders of at least a majority of the then-outstanding Registrable Securities.

 


 

           (b) For the purposes of determining the number of Holders entitled to vote or exercise any rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its stock as maintained by or on behalf of the Company.
      4.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any party’s part of any breach, default or noncompliance under the Agreement or any waiver on such party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to any party, shall be cumulative and not alternative.
      4.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or at such other address or electronic mail address as such party may designate by ten (10) days advance written notice to the other parties hereto.
      4.9 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
      4.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
      4.11 Aggregation of Stock. All shares of Registrable Securities held or acquired by affiliated entities or persons or persons or entities under common management or control shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
      4.12 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require.
      4.13 Termination. This Agreement shall terminate and be of no further force or effect upon an Acquisition.
[Signature Page Follows]

 


 

      In Witness Whereof, the parties hereto have executed this Second Amended and Restated Investor Rights Agreement as of the date set forth in the first paragraph hereof.
             
COMPANY:   INVESTORS:
 
           
Northwest Biotherapeutics, Inc.   Toucan Capital Fund II, L.P.
 
           
18701 120 th Avenue, NE   7600 Wisconsin Avenue
Suite 101   Suite 700
Bothell, WA 98011   Bethesda, MD 20814
 
           
By:
      By:    
 
           
 
           
Title:
      Title:    
 
           
 
           
        Toucan Partners, LLC
 
           
        7600 Wisconsin Avenue
        Suite 700
        Bethesda, MD 20814
 
           
 
      By:    
 
           
 
           
 
      Title:    
 
           

 

 

EXHIBIT 10.4
DATED JUNE 2007
COLLINS STEWART EUROPE LIMITED (1)
and
NORTHWEST BIOTHERAPEUTICS, INC. (2)
NOMINATED ADVISER AND BROKER AGREEMENT
relating to
NORTHWEST BIOTHERAPEUTICS, INC.
MORRISON | FOERSTER
a multinational partnership
CityPoint, One Ropemaker Street | London EC2Y 9AW
Tel: +44 20 7920 4000 | Fax: +44 20 7496 8500
www.mofo.com

 


 

TABLE OF CONTENTS
             
        Page
1.  
INTERPRETATION
    1  
2.  
CONDITION
    2  
3.  
TERM
    3  
4.  
FEES
    4  
5.  
DUTIES OF THE NOMINATED ADVISER AND BROKER
    5  
6.  
DUTIES OF THE COMPANY
    8  
7.  
ADDITIONAL RIGHTS OF COLLINS STEWART
    13  
8.  
CONFLICTS OF INTERESTS AND DUTIES
    13  
9.  
CONFIDENTIALITY
    14  
10.  
TERMS OF REFERENCE
    15  
11.  
INDEMNITY
    17  
12.  
ENTIRE AGREEMENT
    20  
13.  
ASSIGNMENT
    20  
14.  
THIRD PARTY INVESTIGATION
    21  
15.  
VARIATION OF TERMS
    21  
16.  
COUNTERPARTS
    21  
17.  
NOTICES AND SERVICE OF PROCESS
    21  
18.  
THIRD PARTY RIGHTS
    22  
19.  
GOVERNING LAW
    22  
 -i- 

 


 

DATED June 2007
PARTIES:
(1)   COLLINS STEWART EUROPE LIMITED, a company incorporated in England and Wales with number 1774003 and whose registered office is at 88 Wood Street, London EC2V 7QR, United Kingdom (“ Collins Stewart ”); and
 
(2)   NORTHWEST BIOTHERAPEUTICS, INC. a company incorporated under the laws of the State of Delaware, United States and whose registered office is at 18701, 120 th Avenue NE, Suite 101, Bothell, WA 98011, United States (“ the Company ”).
RECITALS
(A)   The Company is intending to seek admission to trading on the AIM market operated by London Stock Exchange plc of all of the shares of Common Stock of the Company, issued and to be issued.
 
(B)   Collins Stewart has agreed, on the terms set out in this Agreement, to act as nominated adviser and broker to the Company.
OPERATIVE PROVISIONS
1.   INTERPRETATION
 
1.1   For the purposes of this Agreement, a reference to a statutory provision includes a reference to:-
  1.1.1   a statutory amendment, consolidation or re-enactment;
 
  1.1.2   statutory instruments or subordinate legislation or orders made under the statutory provision; and
 
  1.1.3   statutory provisions of which the statutory provision is an amendment, consolidation or re-enactment
    but does not include a substituted provision.

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1.2   In this Agreement reference to:
  1.2.1   a person includes a legal or natural person, partnership, trust, company, government or local authority department or other body (whether corporate or unincorporated);
 
  1.2.2   an individual includes, where appropriate, his personal representatives;
 
  1.2.3   the singular includes a reference to the plural and vice versa; and
 
  1.2.4   one gender includes all genders.
1.3   Unless otherwise stated, a reference to a Clause or Schedule is a reference to a clause of, or schedule to, this Agreement and a reference to this Agreement includes its Schedule.
 
1.4   Clause headings in this Agreement and in the Schedule are for ease of reference only and do not affect its construction.
 
1.5   In this Agreement the expression “ business day ” shall mean a day, other than a Saturday or Sunday, on which banks are ordinarily open for business in London and Bothell, Washington, United States.
 
2.   CONDITION
 
2.1   The obligations of the parties under this Agreement are conditional upon the admission of the entire issued and to be issued share capital of the Company to trading on the AIM market (“ AIM ”) operated by London Stock Exchange plc (the “ London Stock Exchange ”) becoming effective (“ Admission ”) pursuant to Rule 6 of the AIM Rules for Companies published from time to time by the London Stock Exchange (the “ AIM Rules ”).
 
2.2   If the condition in Clause 2.1 shall not have been fulfilled by 22 June 2007 (or such later date as Collins Stewart and the Company may agree but in any event not later than 31 July 2007), this Agreement and the obligations under or pursuant to this Agreement shall cease and determine and no party shall have any claim against the other under or pursuant to this Agreement except that the Company shall pay all

2


 

    reasonable costs, charges and expenses incurred by Collins Stewart, up to a maximum amount of £15,000 payable on demand, for Collins Stewart to make relevant compliance checks on Directors, shareholders and other senior employees of the Company as it considers necessary.
 
3.   TERM
 
3.1   The Company hereby agrees to retain Collins Stewart as its nominated adviser and broker for a period of twelve months commencing on the date of Admission (the “ Commencement Date ”) and shall continue thereafter unless and until terminated by the Company or Collins Stewart giving to the other not less than three months prior written notice provided that such notice shall expire on or after the expiry of the initial twelve month period.
 
3.2   Notwithstanding the foregoing:-
  3.2.1   Collins Stewart shall be entitled to resign as nominated adviser and/ or broker at any time (whereupon this Agreement shall terminate forthwith) if:-
  (a)   the Company is in material breach of its obligations under this Agreement or under the AIM Rules or any other agreement, covenant, warranty or undertaking given to Collins Stewart, the London Stock Exchange or any other regulatory authority; or
 
  (b)   any representation or warranty made to Collins Stewart by or on behalf of the Company in or in connection with this Agreement or any other agreement between the Company and Collins Stewart is untrue, inaccurate or misleading in any material respect;
  3.2.2   the Company shall be entitled to terminate this Agreement forthwith by notice in writing to Collins Stewart if:
  (a)   Collins Stewart is in material breach of its obligations under this Agreement; or

3


 

  (b)   Collins Stewart is adjudged not to be fit and proper to conduct investment business by any regulatory authority or is removed from the list of nominated advisers maintained by the London Stock Exchange;
  3.2.3   this Agreement shall terminate forthwith if the Company or Collins Stewart becomes insolvent or has any winding-up, receivership or administrative order made in respect of it, or makes or seeks to make any arrangement with its creditors or passes a resolution for its winding-up or a petition is presented for its winding-up or administration;
 
  3.2.4   this Agreement shall terminate forthwith if the Company’s shares cease to be admitted to trading on AIM save in circumstances where the Company’s shares are suspended from trading, provided that, in the opinion of Collins Stewart (acting reasonably) it is likely that the Company’s shares will be re-admitted to trading within two months of such suspension; and
 
  3.2.5   Collins Stewart shall be entitled to resign, at its sole discretion, at any time on not less than 30 days’ prior written notice to the Company should it consider acting reasonably its name or reputation to be likely to be prejudiced by continuing as the Company’s nominated adviser and/or broker.
3.3   Termination of this Agreement for any reason whatsoever pursuant to this Clause 3 shall be without prejudice to and shall not be by way of limitation of any claims otherwise available to any party arising out of the antecedent breach of this Agreement by any other party.
 
4.   FEES
 
4.1   The Company shall pay to Collins Stewart for its services under this Agreement an annual fee (the “ Fee ”) at the annual rate of £50,000, which amount shall be payable in quarterly instalments in advance, on 1 January, 1 April, 1 July and 1 October each year (the “ Due Dates ”) the first such instalment to be paid on the Commencement Date and shall be a pro rata payment from the date of Admission until the next Due Date. If this Agreement is terminated between Due Dates, Collins Stewart shall be entitled to retain only a pro-rated portion of the fees paid on the Due Date immediately preceding such termination (pro-rated for the period commencing with

4


 

    such Due Date and ending on the date the Agreement was terminated) and shall reimburse the Company for excess fees paid by the Company on such Due Date.
 
4.2   The Fee and all reasonable costs, charges and expenses referred to in Clause 4.1 shall be payable, in each case, in pounds sterling together with value added tax, if applicable.
 
4.3   Any payments made pursuant to this Clause 4 shall be for the performance of Collins Stewart’s services under this Agreement and shall be in addition to and shall not include any fees or commissions payable in connection with the proposed placing of shares in the Company by Collins Stewart (“ Placing ”) pursuant to the placing agreement of even date between (1) the Company, (2) the Directors, and (3) Collins Stewart, relating to the Placing (“ Placing Agreement ”) and Admission and any advice Collins Stewart may be engaged to provide on any specific transaction, position or situation on behalf of the Company.
 
5.   DUTIES OF THE NOMINATED ADVISER AND BROKER
 
5.1   Collins Stewart is responsible to the London Stock Exchange for advising and guiding the Company on its responsibilities under the AIM Rules. Collins Stewart will, as the Company’s nominated adviser, provide general advice to the Company and the Directors in relation to matters concerning the AIM Rules, and any changes thereto requirements of the London Stock Exchange and to other matters relevant to a company whose shares are traded on AIM as the Company may reasonably request from time to time and carry out the responsibilities of nominated adviser as set out in the AIM Rules for Nominated Advisers published from time to time by the London Stock Exchange (the “ NOMAD Rules ”). Any further advice required and requested by the Company from Collins Stewart in relation to any specific transactions or matters over and above such general advice shall be the subject of further specific fees to be agreed in advance between the Company and Collins Stewart in relation to each such specific transaction or matter.
 
5.2   Notwithstanding the generality of Clause 5.1, the responsibilities of Collins Stewart as nominated adviser will also, without limitation, include the following:

5


 

  (a)   monitoring the trading activity in the shares and, in particular, reporting to the Company (where appropriate) if there is a substantial movement in the price of, or trading activity in, the shares;
 
  (b)   advising on compliance with the requirements of, and liaising where necessary with, the AIM team of the London Stock Exchange;
 
  (c)   being available at all times to advise and guide the Directors and the Company as to their respective responsibilities and obligations to ensure compliance, on an ongoing basis, with the AIM Rules;
 
  (d)   providing to the London Stock Exchange such information in relation to the Company in such form and within such time limits as the London Stock Exchange may require;
 
  (e)   reviewing regularly the Company’s actual trading performance and financial condition against any profit forecast, estimate or projection (whether or not the same has been made public by, or on behalf of, the Company) in order to assist the Company in determining whether a notification is necessary under Rule 17 of the AIM Rules;
 
  (f)   providing guidance in respect of making press releases and other public and/or shareholder communications by the Company, as well as distributing approved press releases to the appropriate news services as and when required;
 
  (g)   advising on and co-ordinating an appropriate investor liaison programme for the Company;
 
  (h)   providing a periodic analysis of the make up of the Company’s share register;
 
  (i)   assisting the Company in complying with the regulations of the London Stock Exchange (including the AIM Rules), and, if applicable, the FSA and the Takeover Panel;
 
  (j)   informing the London Stock Exchange if it ceases to be the Nominated Adviser; and

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  (k)   abiding by the eligibility criteria (as set out in the NOMAD Rules) at all times.
5.3   Collins Stewart will, as the Company’s broker, carry out the responsibilities of its broker, including without limitation:
  (a)   preparing and publishing research reports on the Company at such intervals as deemed appropriate by Collins Stewart and the Company (for example on the publication of results and the occurrence of significant events);
 
  (b)   providing the Company with intelligence on its market place and its competitors and on acquisition, investment or other corporate opportunities and advising the Directors on such opportunities;
 
  (c)   advising the Company on anticipated market reactions to new corporate initiatives including, for example, acquisitions, disposals and finance raising;
 
  (d)   if requested, attend annual general meetings and extraordinary general meetings of the Company;
 
  (e)   provide all the services specified from time to time in the AIM Rules or the rules of the London Stock Exchange as being the responsibility of a Broker;
 
  (f)   provide such other assistance on such terms as Collins Stewart and the Company may agree in writing from time to time.
5.4   Collins Stewart will also, subject to receipt of the relevant documents from the Company and for so long as it remains the nominated adviser and broker of the Company, maintain a file (either in hard copy or electronically) relating to the Company, available at all times to the London Stock Exchange, containing the documents required to be available therein by the London Stock Exchange.
 
5.5   Collins Stewart shall release to a Regulatory Information Service all information received from the Company which is required to be announced under the AIM Rules within the time limits required subject to Collins Stewart having received the same in reasonable time to enable it to do so. Subject to the Company providing relevant information to Collins Stewart, Collins Stewart shall advise the Company on the

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    information required to be transmitted to the London Stock Exchange and shall liaise with the London Stock Exchange on behalf of the Company.
 
6.   DUTIES OF THE COMPANY
 
6.1   The Company hereby undertakes to have due regard to all proper and reasonable advice given by Collins Stewart as a nominated adviser in relation to compliance with the AIM Rules.
 
6.2   The Company undertakes with Collins Stewart that it will at all times during the continuance of this Agreement promptly, subject to Clause 8.3:
  6.2.1   provide Collins Stewart with such management information, including (without limitation) quarterly financial statements, as it may reasonably require to enable Collins Stewart to monitor the financial performance of the Company and without prejudice to Clause 6.2.4 below and give reasonable advance notice to Collins Stewart of any proposed announcement of profits or losses and dividends in respect of the shares of the Company;
 
  6.2.2   provide Collins Stewart with copies of the audited consolidated financial statements of the Company and its subsidiaries (if any), approved by the Directors and the auditors for the time being of the Company, together with a draft Form 10-K of such results and provide Collins Stewart with copies of the Company’s Form 10-Q, in each case promptly upon their being available;
 
  6.2.3   forthwith upon request, provide Collins Stewart with complete and accurate copies of all papers and other information laid before any board meeting and of the minutes of any board meeting;
 
  6.2.4   to notify Collins Stewart in advance of and consult with Collins Stewart regarding any announcement of profits or losses or dividends in respect of any financial period of the Company and consult with Collins Stewart in advance of its release regarding any other information which is likely to materially affect the general character or nature of the business of the Company or is required to be announced under the AIM Rules or which may need to be made known to the investing public in order to enable the investing public to

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      appraise the position of the Company to avoid the establishment of a false market in its securities provided that, for the avoidance of doubt, this Clause 6.2.4 shall not apply to any announcements or filings required to be made by the Company with the Securities and Exchange Commission or pursuant to US Federal securities laws generally;
 
  6.2.5   to notify Collins Stewart in advance of, and consult with Collins Stewart at least four days (or, if it is not reasonably practicable to do so, such shorter period as is reasonably practicable) prior to the intended date of publication, proofs of the documents to be sent to holders of the Company’s securities relating to the matters referred to in Clause 6.2.4 above;
 
  6.2.6   not enter into any commitment or agreement or arrangement or knowingly do or permit to be done any other act or thing which, in any such case, would give rise to any obligation to issue any share or loan capital of the Company or to grant any options to acquire shares of the Company (otherwise than under the share option schemes or plans of the Company in existence at the date hereof) or securities exchangeable or convertible into shares of the Company, without prior consultation with Collins Stewart save for the grant of options to employees of the Company in accordance with the rules of such option scheme;
 
  6.2.7   notify Collins Stewart in advance of, and discuss with Collins Stewart, any matter which it may be necessary to make known to the investing public in order to avoid the establishment of a false and/or disorderly market in its securities;
 
  6.2.8   forward to Collins Stewart for comment proofs of all documents to be sent to holders of any of the Company’s securities;
 
  6.2.9   inform Collins Stewart of any proposed new directors and ensure that each such proposed new director completes a directors questionnaire and, if Collins Stewart deems appropriate in the circumstances, pay for Collins Stewart to carry out third party investigations on any proposed new director;

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  6.2.10   inform Collins Stewart forthwith upon becoming aware of any breach of the AIM Rules by the Company and/or any Director or a future director of the Company and to request the advice and guidance of Collins Stewart in relation to all matters relevant to the Company’s compliance with the AIM Rules;
 
  6.2.11   maintain a code on directors’ and senior employees’ dealings in the form or substantially the form in place at Admission or otherwise required by the AIM Rules;
 
  6.2.12   ensure that at all times one of the Directors or a future director of the Company or the Company Secretary shall be authorised by the Company and responsible (on behalf of the Company) for communicating with Collins Stewart with regard to all matters which are the subject of this Agreement; and
 
  6.2.13   maintain a website in compliance with Rule 26 of the AIM Rules.
6.3   The Company represents and warrants to Collins Stewart that all information and documents relating to the Company disclosed or supplied by any of the Directors or the Company or any agent of any of them to Collins Stewart or its agents during the term of or in the course of the negotiations leading up to this Agreement, are or will be true and accurate in all material respects, and there is and will be no fact not disclosed which would render any such information or document untrue, inaccurate or misleading.
 
6.4   The Company shall provide Collins Stewart with all such information and documents as Collins Stewart may reasonably require to enable it to comply with its obligations to the London Stock Exchange under the AIM Rules and/or the NOMAD Rules including without limitation, and subject to Clause 9 any document or other information requested by Collins Stewart to make due and careful enquiry of, and exercise due skill and care in considering or satisfying, a particular matter (and to keep an appropriate record of the same) and supply and procure that each Director supplies, forthwith upon Collins Stewart requesting the same, complete and accurate copies of any document or any other information which Collins Stewart may require for the discharge of its duties under Rule 25 of the NOMAD Rules.

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6.5   The Company shall comply with all obligations imposed on it or him (as the case may be), under the Financial Services and Markets Act 2000 (“ FSMA ”), the AIM Rules, the Prospectus Rules published by the Financial Services Authority from time to time (“ Prospectus Rules ”) and the Code on Takeovers and Mergers and all such other legislation or regulations as shall become applicable to a company whose share capital, or any part of it, is traded on AIM.
 
6.6   In addition to and without limiting any of the other obligations of the Company in this Agreement, the Company undertakes to Collins Stewart that they shall procure (so far as each is able) that a meeting (a “ Compliance Meeting ”) is held:
  6.6.1   at the principal place of business of the Company from time to time or such other location as may be agreed in writing between the Company and Collins Stewart for the purposes of this Clause 6.6.1;
 
  6.6.2   of which as much advance written notice as is reasonably practicable (being not less than five Business Days, where practicable) is given to Collins Stewart;
 
  6.6.3   at which Collins Stewart shall be entitled to attend (either in person or by telephone, video conference facility or other similar electronic communication facility) and speak;
 
  6.6.4   at least once every three months, provided that a Compliance Meeting shall be held on the date and time specified in written notice from Collins Stewart to the Company where Collins Stewart, having regard to its obligations under the NOMAD Rules, believes that a Compliance Meeting is required to be held at such other time;
 
  6.6.5   at which at least two Executive Directors are present in person of which one must be either the Chief Executive Officer or the Chief Financial Officer;
 
  6.6.6   at which each Director attends in person or by telephone at least once every six months;
 
  6.6.7   at which the attendees of each Compliance Meeting:

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  (a)   review and consider, with all due care and attention, the compliance checklist in the form set out in Schedule 1 (the “ Compliance Checklist ”) and which may be updated from time to time by Collins Stewart;
 
  (b)   complete the Compliance Checklist, providing as much information as the attendees reasonably consider should be made available to Collins Stewart to enable Collins Stewart to comply with its obligations under the NOMAD Rules;
 
  (c)   resolve that the completed Compliance Checklist be approved by the relevant Compliance Meeting, be signed by a Director present and circulated to all the Directors and Collins Stewart;
  6.6.8   a Director present certifies the completed Compliance Checklist as being true and accurate and signs the completed Compliance Checklist on behalf of all the attendees of the Compliance Meeting.
6.7   The parties agree that the form of the Compliance Checklist, which at the date of this Agreement is as set out in Schedule 1, is to include all such information as is desirable to be notified to Collins Stewart for the purposes of fulfilling its obligations under the NOMAD Rules. Accordingly, the parties agree that the form of the Compliance Checklist shall be amended by Collins Stewart from time to time to the satisfaction of Collins Stewart (in its absolute discretion) with the aim of ensuring (but without limiting the absolute discretion of Collins Stewart as to the form of the Compliance Checklist from time to time) that the Compliance Checklist requests all such information as is desirable to be notified to Collins Stewart for the purposes of fulfilling Collins Stewart’s obligations under the NOMAD Rules or such other rules, regulations or laws to which Collins Stewart is subject from time to time in connection with this Agreement.
 
6.8   The Company shall not during the term of this Agreement issue shares of preferred stock of the Company (the “ Preferred Stock ”) to the extent such issuance exceeds 20 per cent. of the then aggregate of the issued and outstanding shares of common stock of the Company (on a fully diluted basis taking into account all issued and outstanding warrants, options and other securities convertible into such shares of

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    common stock) and the Preferred Stock, take together, without the affirmative of the holders of not less than a majority of the voting power of all outstanding stock of the Company.
 
7.   ADDITIONAL RIGHTS OF COLLINS STEWART
 
7.1   For the period during which Collins Stewart acts as the Company’s nominated adviser and/ or broker, the Company agrees that Collins Stewart shall have the right to attend (by telephone or other means) all meetings of the board of directors of the Company.
 
7.2   Collins Stewart shall, during the period of twelve months from the date of Admission, be afforded an opportunity to propose its services on the same basis as other investment banks or financial advisers, to act as the Company’s placing agent and/or underwriter and/or adviser on any debt or equity financings conducted within the United Kingdom, whether public or private, on terms to be negotiated between Collins Stewart and the Company, whether institutional or from a strategic corporate partner. Notwithstanding the foregoing, this clause 7.2 shall not apply to partnering, co-development or other strategic transactions of the Company.
 
7.3   Collins Stewart shall, during the period of twelve months from the date of Admission, be afforded an opportunity to propose its services on the same basis as other investment banks or financial advisers, to act as the Company’s financial adviser in relation to any extraordinary corporate transaction (M&A, partnering or other strategic transaction, etc.) that the Company may undertake in the United Kingdom.
 
8.   CONFLICTS OF INTERESTS AND DUTIES
 
8.1   The Company acknowledges that the London Stock Exchange regards a nominated adviser as owing certain duties solely to the London Stock Exchange and agrees that if at any time a conflict arises between the duties of Collins Stewart to the Company and the duties of Collins Stewart to the London Stock Exchange, Collins Stewart shall, after reasonable consultation with the Company, be entitled to act so as to fulfil its obligations to the London Stock Exchange without incurring any liability to the Company arising out of such action. Collins Stewart agrees it will act reasonably to mitigate loss to the Company as a result of such conflict.

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8.2   Neither Collins Stewart nor any director, officer, adviser, shareholder, partner or employee of Collins Stewart or part undertaking or subsidiary of Collins Stewart (a “ Relevant Person ”) will have any duty to disclose to the Company any information which comes to their notice in the course of carrying on any other business or as a result of, or in connection with, the provision of services to other persons. The Company acknowledges and agrees that Collins Stewart and Relevant Persons may be prohibited from disclosing, or it may be inappropriate for them to disclose, information to the Company even if it relates to the Company.
 
8.3   The Company undertakes that no information will be supplied to Collins Stewart in breach of any duty of confidentiality (whether contractual or arising at common law) owed by the Company to any third party.
 
9.   CONFIDENTIALITY
 
9.1   Except as required by law or regulation, each of Collins Stewart and the Company undertakes to keep confidential any confidential information concerning the business, affairs, directors or employees of the other which comes into its possession and not to use any such information for any purposes other than that for which it was provided unless such information:
  9.1.1   is already in the public domain; or
 
  9.1.2   comes into the public domain (otherwise than by breach by the party disclosing the information); or
 
  9.1.3   is already held by the party disclosing the information and is not subject to a duty of confidentiality; or
 
  9.1.4   has been or is obtained by the party disclosing the information from a third person who, insofar as is known to that party, is not prohibited from transmitting the information to that party by a contractual, legal or fiduciary obligation to the other party.
9.2   The Company acknowledges and accepts that Collins Stewart (or any Relevant Person) may be required to disclose information and deliver documentation relating to the Company and/or the engagement to governmental or regulatory agencies and

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    authorities and expressly authorises any such disclosure and delivery provided that Collins Stewart shall so far as is reasonably practicable liaise with the Company prior to disclosure of any information.
 
9.3   Nothing in this Agreement shall oblige the Company to provide Collins Stewart with a copy of any document or any information which the Company reasonably and in good faith considers is or may be covered by attorney/client privilege, work-product doctrine or in respect of which it is restricted from disclosing due to an obligation of confidentiality owed to a third party.
 
10.   TERMS OF REFERENCE
 
10.1   Any advice given by Collins Stewart or any Relevant Person to the Company including any valuations and other written reports or material produced by Collins Stewart or any Relevant Person is confidential to the Company and provided for its sole use and benefit and may not be used or relied upon by the Company for any purpose other than that for which it was provided or (save as required by law or by any regulatory or taxation authority) disclosed to any other person (other than the Company’s professional advisers who may place no reliance on such advice) without the prior written consent of Collins Stewart.
 
10.2   Save as required by the AIM Rules, neither any advice rendered by, nor communication from, Collins Stewart or any Relevant Person may be quoted or referred to, in any public report, document, release, announcement or other communication by the Company without the prior written consent of Collins Stewart.
 
10.3   Without prejudice to any duties or obligations imposed on Collins Stewart or any Relevant Person by the FSMA, the FSA Handbook or under the regulatory system (as defined by the Glossary to the FSA Handbook) (the “ Regulations ”), Collins Stewart shall act exclusively for the Company in relation to the subject matter of this Agreement and confirms it is not acting for any other person or treating any other person as its client in relation to the subject matter of this Agreement and Collins Stewart will therefore not be responsible to any person other than the Company for providing the protections afforded to clients of Collins Stewart or for providing advice in relation to or in connection with such subject matter.

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10.4   The copyright in all correspondence or documentation written or prepared by Collins Stewart or by any Relevant Person in the course of the duties of this appointment shall remain with Collins Stewart.
 
10.5   Collins Stewart shall be entitled to assume that instructions have been properly authorised by the Company if they are given or purported to be given by any person who is or purports to be, and is reasonably believed by Collins Stewart to be, a Director or duly authorised agent of the Company. The Company shall be entitled to assume that advice, guidance and/or instructions received from or actions taken by Collins Stewart have been properly given and/or taken and authorised by Collins Stewart if given and/or taken or purported to be given and/or taken by any person who is or purports to be, and is reasonably believed by the Company to be, a Director or duly authorised agent of Collins Stewart.
 
10.6   In providing its services hereunder, Collins Stewart is proposing to classify the Company as an Intermediate Customer as defined in the FSA Handbook which fact the Company hereby confirms, and the Company acknowledges that, by virtue of such fact, the Company will not obtain the benefit of certain of the FSA Rules.
 
10.7   Without prejudice to Collins Stewart’s duties to provide advice and guidance to the Company on the AIM Rules pursuant to this Agreement, the Company acknowledges that Collins Stewart is not responsible for providing any legal advice to the Company in respect of any applicable laws and regulations and the Company undertakes to obtain appropriate legal advice in respect of these matters and to communicate to Collins Stewart any such advice as is relevant to the carrying out of Collins Stewart’s services hereunder.
 
10.8   The Company acknowledges that, when Collins Stewart gives the Company advice or provides other services in accordance with this Agreement, Collins Stewart or any Relevant Person or another client may have an interest, relationship or arrangement that may conflict with the Company’s interests and would otherwise conflict with the duties owed by Collins Stewart to the Company. Collins Stewart will be obliged to disregard any such interest when it is acting for the Company. Collins Stewart has established, as permitted under the rules of the FSA, “Chinese Wall” procedures designed to ensure that in providing services to any particular client, individuals are

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    insulated from information known to individuals working in other divisions. Collins Stewart accordingly confirms that any confidential information obtained by it in its capacity as Nominated Adviser to the Company will, through the use of “Chinese Walls”, be kept strictly confidential from, and will not be disclosed to or used by any division within Collins Stewart, carrying out brokerage or trading activities (including acting as Broker for the Company) within Collins Stewart. The Company also accepts that, in acting for it, Collins Stewart will not be required to disclose to it, nor to make use for its benefit of, any information known to Collins Stewart which (i) belongs to or is confidential to another client of Collins Stewart or (ii) belongs to or is confidential to any Relevant Person or (iii) which belongs to or is confidential to Collins Stewart and relates to some part of its business other than the provision of corporate finance services.
 
10.9   The Company acknowledges that all services provided by Collins Stewart pursuant to this Agreement are subject to the applicable Regulations.
 
10.10   The Company acknowledges and accepts that Collins Stewart may be required by law or by regulatory agencies and authorities to disclose information and deliver documents relating to the Company in relation to Collins Stewart’s engagements hereunder. The Company expressly authorises any such disclosure or delivery provided that, to the extent allowed, Collins Stewart will provide the Company with prompt (and where practicable, prior) notice of any such obligation to disclose information.
 
11.   INDEMNITY
 
11.1   No claim shall be made against any Relevant Person by the Company or any Director, officer, employee, agent or adviser of the Company to recover any loss, damage, liability, cost, charge or expense which it or he may suffer or incur by reason of, arising directly or indirectly out of, or in connection with, the carrying out by or on behalf of Collins Stewart of their obligations under this Agreement save and to the extent that such loss, damage, liability, cost, charge or expense arises from (i) the fraud, negligence or wilful default of the Relevant Person or (ii) the material breach by an Relevant Person of its duties or obligations under FSMA or the regulatory

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    system as defined in the rules of the FSA or the Nomad Rules (iii) the breach by an Relevant Person of the terms of this Agreement.
 
11.2   The Company undertakes to Collins Stewart to indemnify and hold harmless each of Collins Stewart and its Relevant Persons against all or any claims, actions, liabilities, demands, proceedings or judgements (a “ Claim ”) made, brought or established against any of Collins Stewart and its Relevant Persons in any jurisdiction:
  11.2.1   which Collins Stewart (or any Relevant Person) may suffer or incur as a person who has issued or approved the contents of any financial promotion (as defined for the purpose of Section 21 of the FSMA) issued by or on behalf of the Company; or
 
  11.2.2   which may be brought against or incurred by Collins Stewart (or any Relevant Person) in connection with or directly or indirectly arising out of:
  (a)   the proper performance by Collins Stewart or any Relevant Person of its obligations hereunder or otherwise in connection with its appointment hereunder or its role as the Company’s Nominated Adviser for the purpose of the AIM Rules; or
 
  (b)   the failure or alleged failure by the Company or any of the Directors of the Company to comply with the AIM Rules, FSMA or any other requirements of statute or statutory regulation; or
 
  (c)   the entry by Collins Stewart into this Agreement and for any action taken by or on behalf of Collins Stewart in pursuance of its engagement hereunder
    save to the extent that any such losses, liabilities, claims, costs, charges or expenses arise because of the fraud, negligence or wilful default of Collins Stewart or any Relevant Person or breach by Collins Stewart of the terms of this Agreement or breach by Collins Stewart or the Relevant Person of the rules of the FSA or the NOMAD Rules or other applicable law, or are of such nature that liability may not be excluded pursuant to the rules of the FSA, the NOMAD Rules or other applicable law.

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11.3   Subject to the saving provided at the end of Clause 11.2, the Company undertakes and covenants to indemnify Collins Stewart (for itself and as agent and trustee for each Relevant Person) against all losses, liabilities, claims, reasonable costs, charges and expenses which may be brought against or incurred by Collins Stewart (or any Relevant Person) in connection with or arising out of any breach or alleged breach of any of the undertakings set out in Clause 6 or of any other term of this Agreement on the part of the Company.
 
11.4   Collins Stewart shall, subject to any requirement imposed by an insurer of Collins Stewart of a Relevant Person, as soon as practicable after becoming aware of any Claim made, or threatened, against any Relevant Person in respect of which an indemnity may be sought pursuant to Clause 11.2, notify the Company thereof. Collins Stewart and any Relevant Person will, to the extent reasonable and practicable in the circumstances, and subject to any requirement imposed by an insurer of Collins Stewart or the Relevant Person, consult with the Company and regarding the conduct of the Claim and shall give to the Company such opportunities as they may reasonably request to make representations regarding the conduct of the Claim subject to Collins Stewart or the Relevant Person being indemnified in a manner satisfactory to it against all costs, charges and expenses incurred by it in complying with any such request. Collins Stewart and any Relevant Person shall provide such information and documentation relating to the Claim as the Company may reasonably require and shall keep the Company informed in relation to such Claim. Collins Stewart will not, and will procure that each other Relevant Person does not, without the prior written consent of the Company settle or compromise or consent to the entry of any judgment in respect of any Claim except where any failure to or delay in so compromising or consenting could, in Collins Stewart’s reasonable opinion, materially and adversely affect the reputation of Collins Stewart or such Relevant Person in which event Collins Stewart or that Relevant Person will consult with the Company before so compromising or consenting.
 
11.5   The Company will not, without the prior written consent of Collins Stewart (acting reasonably and in good faith), settle or compromise or consent to the entry of any judgment with respect to any Claim in respect of which a Claim may be brought by an Relevant Person under Clause 11.2 where Collins Stewart is an actual or potential

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    party to such Claim unless such settlement, compromise or consent includes an unconditional release of Collins Stewart from all loss, damage, liability, cost, charge or expense arising out of or in connection with such Claim.
11.6   If any third party is engaged by the Company and a limitation on the extent to which claims may be made against such third party in respect of any liabilities is agreed by the Company, where any damage or loss is suffered by the Company or the Director for which Collins Stewart and any such third party would otherwise be jointly and severally liable to the Company or the Director the extent to which such damage or loss shall be recovered from Collins Stewart shall be limited so as to be in proportion to Collins Stewart’s responsibility for the circumstances that give rise to the damage or loss.
11.7   The indemnities contained in Clauses 11.2 and 11.3 shall extend to include all reasonable costs and expenses including reasonable legal fees and expenses on a full indemnity basis suffered or incurred by any Relevant Person in connection with enforcing its rights under such indemnity (together with any VAT thereon).
 
12.   ENTIRE AGREEMENT
 
12.1   This Agreement sets out the entire agreement of the parties hereto in relation to the appointment of Collins Stewart as the Company’s nominated adviser and broker.
 
12.2   All other previous letters or agreements between any of the parties hereto relating to the appointment of Collins Stewart as nominated adviser and broker to the Company shall have no further effect including, but not limited to the engagement letter dated 9 March 2007 between the Company and Collins Stewart.
 
13.   ASSIGNMENT
 
    The Agreement, and the rights and obligations arising under it, shall not be assignable nor transferable without the prior written agreement of each of the other parties hereto.

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14.   THIRD PARTY INVESTIGATION
 
    Collins Stewart will make any such investigations into the status and standing of the Company, its Directors, shareholders and other senior employees as it considers necessary in relation to its appointment as nominated adviser including without limitation, instructing third party investigatory agencies to undertake such investigations on Collins Stewart’s behalf and the Company agrees to reimburse Collins Stewart for such investigations.
 
15.   VARIATION OF TERMS
 
    No variation of any provision of this Agreement shall be effective unless made in writing and signed on behalf of Collins Stewart and by a director on behalf of the Company if such variation affects their respective obligations under this Agreement.
 
16.   COUNTERPARTS
 
    This Agreement may be entered into in any number of counterparts and by the parties to it on separate counterparts each of which when executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument.
 
17.   NOTICES AND SERVICE OF PROCESS
 
17.1   Any notice or other communication required or authorised to be given by any party to another in connection with this Agreement shall be in writing.
 
17.2   Subject to Clause 17.2 below, any notice or other communication to be given hereunder shall either by sent by facsimile transmission, by first class post or by registered airmail to the relevant address(es) of the relevant party referred to in this Agreement or any other address notified for this purpose and shall be conclusively deemed to have been given, if sent by facsimile transmission, at the time of printout of a transmission report showing that the correct number of pages has been sent without error (unless such notice would otherwise be deemed to be given on a day which is not a business day or after 5.30pm on any business day, in which case it shall instead be deemed to have been given at 9.00am on the next following business day), if sent by first class post, on the second business day after the date of posting and if sent by registered airmail, on the fifth business day from the date of posting.

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17.3   The Company irrevocably appoint Jordans Limited, 20-22 Bedford Row, London WC1R 4JS as its process agent to receive on their behalf service of any process in any proceedings in England. Such service shall be deemed completed on delivery to such agent (whether or not such process is forwarded to and received by the Company). If for any reason either such process agent ceases to be able or willing to act as process agent, the Company irrevocably agree to appoint a substitute process agent acceptable to Collins Stewart and to deliver to Collins Stewart a copy of the new process agent’s acceptance of that appointment within 30 days of such acceptance.
 
17.4   The parties irrevocably consent to any process in a legal action or proceedings in connection with this Agreement being served on them in accordance with the provisions of this Agreement relating to the service of notices. Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law.
 
18.   THIRD PARTY RIGHTS
 
    Subject as provided in Clause 11.2, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. For the avoidance of doubt, the parties hereto may agree to terminate this Agreement or vary any of its terms without the consent of any third party.
 
19.   GOVERNING LAW
 
    This Agreement shall be governed by and construed in accordance with English Law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts in connection with any matter arising therefrom.
AS WITNESS the hands of the parties hereto or their duly authorised representatives the day and year first above written.

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SCHEDULE 1
Compliance Checklist
Northwest Biotherapeutics, Inc. (the “Company”)
In order to facilitate Collins Stewart Europe Limited (“ Collins Stewart ”), the Company’s nominated adviser, remaining in regular contact with the Company and to keep up-to-date with developments at the Company, to enable Collins Stewart to fulfil its obligations under the AIM Rules for Nominated Advisers and also to help ensure compliance by the Company of its obligations under the AIM Rules for Companies.
The provisions relating to the Compliance Meetings required to be held by the directors of the Company are set out in the Nominated Adviser and Broker Agreement (the “ Agreement ”) entered into between the Company and Collins Stewart. If any Director is in any doubt as to any aspect of this Compliance Checklist, the AIM Rules for Companies or Nominated Advisers or the terms of the Agreement, he should in the first instance contact Collins Stewart.
The Company must hold a Compliance Meeting (as defined in the Agreement) of Directors (and Collins Stewart as applicable) at least once a month at which the Company answers each question and provides additional information as required. The completed Compliance Checklist must be signed on behalf of the Board of Directors by a Director and sent to Collins Stewart immediately following each Compliance Meeting, in the first instance by:
  telephoning Tim Mickley on +44 (0) 207 523 8313 or Adam Cowen on +44 (0)207 523 8320 or
 
  fax to +44 (0)207 523 8134, for the attention of Tim Mickley/Adam Cowen or
 
  email to tmickley@collins-stewart.com and acowen@collins-stewart.com and in either case
 
  sending the original hard copy to follow in the post to Collins Stewart Europe Limited, 88 Wood Street, London, EC2V 7QR and marked for the attention of Tim Mickley or Adam Cowen.
Where any Director (whether present at a Compliance Meeting or otherwise) disagrees with any response or information provided to Collins Stewart in any Compliance Checklist (or

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considers any response or information provided inadequate, incomplete or misleading), he or she must inform Collins Stewart immediately by:
  telephoning Tim Mickley on +44 (0) 207 523 8313 or Adam Cowen on +44 (0)207 523 8320 or
 
  fax to +44 (0)207 523 8134, for the attention of Tim Mickley/Adam Cowen or
 
  email to tmickley@collins-stewart.com and acowen@collins-stewart.com .
The Company
     
Are there any significant developments in relation to the Company’s business including its contracts and customers? If yes, please provide a full update.
  Yes       o
No        o
 
   
Update:
   
 
   
Are there any significant developments in the Company’s sector(s) and market(s)? If yes, please provide a full update.
  Yes       o
No        o
 
   
Update:
   
 
   
Do you feel that it is an appropriate time for Collins Stewart to undertake a visit to the Company’s offices of operation and meet with the directors and key managers? Are there any new key managers Collins Stewart should meet? If yes, please provide full details.
  Yes       o
No        o
 
   
Details:
   
 
   
Is there any unpublished price sensitive information in existence of which Collins Stewart is not aware? If yes, please provide full details.
  Yes       o
No        o
 
   
Details:
   
Directors and board
     
Do you consider that the composition of the board of directors as a whole continues to reflect the Company’s needs, for example given its type, size and profile? If no, please provide reasons.
  Yes       o
No        o

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Reasons:
   
 
   
Do you consider that each of the directors continues to have the relevant experience in relation to their role and is suitable to be a director of a company with its shares admitted to trading on AIM? If no, please provide reasons.
  Yes       o
No        o
 
   
Reasons:
   
 
   
Are any changes to the board of directors proposed? If yes, please provide details. (Please also provide details as to the suitability of such individual(s) as potential board directors).
  Yes       o
No        o
 
   
Details:
   
 
   
Do you consider that the composition of the board of directors as a whole continues to reflect the Company’s needs, for example given its type, size and profile? If no, please provide reasons.
  Yes       o
No        o
 
   
Reasons:
   
 
   
Do you consider the Company’s corporate governance measures continue to be appropriate? If no, please provide reasons.
  Yes       o
No        o
 
   
Reasons:
   
 
   
AIM Rule compliance
   
 
   
Do you consider the Company’s procedures to facilitate compliance with the AIM Rules for Companies are sufficient? If no, please provide details.
  Yes       o
No        o
 
   
Details:
   
 
Do the directors and the Company understand their continuing responsibilities and obligations under the AIM Rules for Companies. If no, please provide details.
  Yes       o
No        o

25


 

     
 
   
Details:
   
 
   
Has the Company released any notifications to the London Stock Exchange without the prior consent of Collins Stewart? If yes, please provide details.
  Yes       o
No        o
 
   
Details:
   
         
Signed
       
         
    Director, duly authorised for an on behalf of the board of directors of Northwest Biotheraeputics, Inc.
 
       
Name
       
         
 
Date
       
         

26


 

         
SIGNED by
       
 
       
duly authorised for and on behalf of
       
 
       
COLLINS STEWART EUROPE LIMITED
       
 
       
 
       
SIGNED by
       
 
       
duly authorised for and on behalf of
       
 
       
NORTHWEST BIOTHERAPEUTICS, INC.
       
 
       

 

EXHIBIT 10.5
Northwest Biotherapeutics, Inc.
2007 Stock Option Plan
Approved By Board: April 15, 2007
Effective Date: April 22, 2007
Approved By Stockholders:            , 2007
Termination Date: April 14, 2017
1. General .
      (a) Eligible Option Recipients . The persons eligible to receive Options are Employees, Directors and Consultants.
      (b) Available Options . The Plan provides for the grant of the following: (i) Incentive Stock Options and (ii) Nonstatutory Stock Options.
      (c) General Purpose . The Company, by means of the Plan, seeks to secure and retain the services of the group of persons eligible to receive Options as set forth in Section 1(a), to provide incentives for such persons to exert maximum efforts for the success of the Company and any Affiliate and to provide a means by which such eligible recipients may be given an opportunity to benefit from increases in value of the Common Stock through the granting of Options.
2. Administration .
      (a) Administration by Board . The Board shall administer the Plan unless and until the Board delegates administration of the Plan to a Committee or Committees, as provided in Section 2(c).
      (b) Powers of Board . The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan:
           (i) To determine from time to time (A) which of the persons eligible under the Plan shall be granted Options; (B) when and how each Option shall be granted; (C) what type or combination of types of Option shall be granted; (D) the provisions of each Option granted (which need not be identical), including, without limitation, the vesting schedule and terms, and the time or times when a person shall be permitted to receive cash or Common Stock pursuant to an Option; and (E) the number of shares of Common Stock with respect to which an Option shall be granted to each such person.
           (ii) To construe and interpret the Plan and Options, and to establish, amend and revoke rules and regulations for the Plan’s administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Option Agreement in a manner and to the extent it shall deem necessary or expedient to make the Plan or Option fully effective.

 


 

           (iii) To settle all controversies regarding the Plan and Options.
           (iv) On an extraordinary basis, to determine case by case whether to accelerate the time at which an Option may first be exercised or the time during which an Option or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Option stating the time at which it may first be exercised or the time during which it will vest, to the extent that such acceleration will not trigger taxation under Section 409A of the Code.
           (v) To suspend or terminate the Plan at any time. Suspension or termination of the Plan shall not impair rights and obligations under any Option granted while the Plan is in effect except with the written consent of the affected Participant.
           (vi) To amend the Plan in any respect the Board deems necessary or advisable, including, without limitation, relating to Incentive Stock Options and certain nonqualified deferred compensation under Section 409A of the Code and to bring the Plan and/or Options into compliance therewith, subject to the limitations, if any, of applicable law. However, except as provided in Section 9(a) relating to Capitalization Adjustments, stockholder approval shall be required, but only to the extent required by applicable law or listing requirements, for any amendment of the Plan that either (A) materially increases the number of shares of Common Stock available for issuance under the Plan, (B) materially expands the class of individuals eligible to receive Options under the Plan, (C) materially increases the benefits accruing to Participants under the Plan or materially reduces the price at which shares of Common Stock may be issued or purchased under the Plan, (D) materially extends the term of the Plan, or (E) expands the types of stock awards available for issuance under the Plan, Except as provided above, rights under any Option granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (1) the Company requests the consent of the affected Participant, and (2) such Participant consents in writing.
           (vii) To submit any amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of (A) Section 162(m) of the Code and the regulations thereunder regarding the exclusion of performance-based compensation from the limit on corporate deductibility of compensation paid to Covered Employees, (B) Section 422 of the Code regarding “incentive stock options” or (C) Rule 16b-3.
           (viii) To approve forms of Option Agreements for use under the Plan and to amend the terms of any one or more Options, including, but not limited to, amendments to provide terms more favorable to the Participant than previously provided in the Option Agreement, subject to any specified limits in the Plan that are not subject to Board discretion; provided however, that the Participant’s rights under any Option shall not be impaired by any such amendment unless (A) the Company requests the consent of the affected Participant, and (B) such Participant consents in writing. Notwithstanding the foregoing, subject to the limitations of applicable law, if any, and without the affected Participant’s consent, the Board may amend the terms of any one or more Options if necessary to maintain the qualified status of the Option as an Incentive Stock Option or to bring the Option into compliance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued or amended after the Effective Date.

2.


 

           (ix) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company and that are not in conflict with the provisions of the Plan or Options.
           (x) To adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Employees, Directors or Consultants who are foreign nationals or employed outside the United States.
      (c) Delegation to Committee .
           (i) General . The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee of the Committee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may retain the authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated to the Committee, Committees, subcommittee or subcommittees.
           (ii) Section 162(m) and Rule 16b-3 Compliance . In the sole discretion of the Board, the Committee may consist solely of two (2) or more Outside Directors, in accordance with Section 162(m) of the Code, or solely of two (2) or more Non-Employee Directors, in accordance with Rule 16b-3. In addition, the Board or the Committee, in its sole discretion, may (A) delegate to a Committee which need not consist of Outside Directors the authority to grant Options to eligible persons who are either (1) not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting from such Option, or (2) not persons with respect to whom the Company wishes to comply with Section 162(m) of the Code, or (B) delegate to a Committee which need not consist of Non-Employee Directors the authority to grant Options to eligible persons who are not then subject to Section 16 of the Exchange Act.
      (d) Effect of Board’s Decision . All determinations, interpretations and constructions made by the Board in good faith shall not be subject to review by any person and shall be final, binding and conclusive on all persons.
3. Shares Subject to the Plan .
      (a)  Subject to the provisions of Section 9 relating to adjustments upon changes in stock, the aggregate number of shares of Common Stock of the Company that may be issued pursuant to Options after the Effective Date shall not exceed Five Million Four Hundred Eighty Thousand Eight Hundred Sixty-Eight (5,480,868) shares (the foregoing number of shares gives effect to the 1-for-15 reverse stock split of the Common Stock effected on June 19, 2007). For clarity, the limitation in this subsection 3(a) is a limitation in the number of shares of Common Stock that may be issued pursuant to the Plan. Accordingly, this subsection 3(a) does not limit the granting of Options except as provided in subsection 7(a). Shares may be issued in

3.


 

connection with a merger or acquisition as permitted by NASD Rule 4350(i)(1)(A)(iii) or, if applicable, NYSE Listed Company Manual Section 303A.08, or AMEX Company Guide Section 711 and such issuance shall not reduce the number of shares available for issuance under the Plan. Furthermore, if an Option (i) expires or otherwise terminates without having been exercised in full or (ii) is settled in cash ( i.e. , the holder of the Option receives cash rather than stock), such expiration, termination or settlement shall not reduce (or otherwise offset) the number of shares Common Stock that may be issued pursuant to the Plan.
      (b)  If any shares of common stock issued pursuant to an Option are forfeited back to the Company because of the failure to meet a contingency or condition required to vest such shares in the Participant, then the shares which are forfeited shall revert to and again become available for issuance under the Plan. Also, any shares reacquired by the Company pursuant to subsection 8(g) or as consideration for the exercise of an Option shall again become available for issuance under the Plan. Notwithstanding the provisions of this subsection 3(b), any such shares shall not be subsequently issued pursuant to the exercise of Incentive Stock Options.
      (c) Incentive Stock Option Limit . Notwithstanding anything to the contrary in this Section 3(c), subject to the provisions of Section 9(a) relating to Capitalization Adjustments the aggregate maximum number of shares of Common Stock that may be issued pursuant to the exercise of Incentive Stock Options shall be Five Million Four Hundred Eighty Thousand Eight Hundred Sixty-Eight (5,480,868) shares of Common Stock (the foregoing number of shares gives effect to the 1-for-15 reverse stock split of the Common Stock effected on June 19, 2007).
      (d) Section  162(m) Limitation on Annual Grants . Subject to the provisions of Section 9(a) relating to Capitalization Adjustments, at such time as the Company may be subject to the applicable provisions of Section 162(m) of the Code, no Employee shall be eligible to be granted during any calendar year Options whose value is determined by reference to an increase over an exercise or strike price of at least one hundred percent (100%) of the Fair Market Value on the date the Option is granted covering more than Five Million (5,000,000) shares of Common Stock (the foregoing number of shares gives effect to the 1-for-15 reverse stock split of the Common Stock effected on June 19, 2007).
      (e) Source of Shares . The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares repurchased by the Company on the market or otherwise.
4. Eligibility .
      (a) Eligibility for Specific Options . Incentive Stock Options may be granted only to employees of the Company or a parent corporation or subsidiary corporation (as such terms are defined in Sections 424(e) and (f) of the Code). Options other than Incentive Stock Options may be granted to Employees, Directors and Consultants.
      (b) Ten Percent Stockholders . A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the exercise price of such Option is at least one hundred ten percent (110%) of the Fair Market Value on the date of grant, and the Option is not exercisable after the expiration of five (5) years from the date of grant, provided however, that Ten Percent Stockholders may be granted Non-qualified Stock Options at any exercise price and exercise terms agreed by the parties (subject to Section 5 hereof).

4.


 

      (c) Consultants . A Consultant shall be eligible for the grant of an Option only if, at the time of grant, a Form S-8 Registration Statement under the Securities Act ( Form S-8 ) is available to register either the offer or the sale of the Company’s securities to such Consultant because of the nature of the services that the Consultant is providing to the Company, because the Consultant is a natural person, or because of any other rule governing the use of Form S-8.
5. Option Provisions .
     Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. All Options shall be separately designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates shall be issued for shares of Common Stock purchased on exercise of each type of Option. If an Option is not specifically designated as an Incentive Stock Option, then the Option shall be a Nonstatutory Stock Option. The provisions of separate Options need not be identical; provided, however , that each Option Agreement shall include (through incorporation of provisions hereof by reference in the Option Agreement or otherwise) the substance of each of the following provisions:
      (a) Term . Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, the term (which need not be the same for different option grants) shall be determined by the Board and set forth in the Option Grant Agreement. No Option shall be exercisable after the expiration of ten (10) years from the date of its grant or such shorter period specified in the Option Agreement.
      (b) Exercise Price . Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, the exercise price of each Option shall be not less than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option on the date the Option is granted. Notwithstanding the foregoing, an Option may be granted with an exercise price at any level below one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option if such Option is granted pursuant to an assumption of or substitution for another option in a manner consistent with the provisions of Section 424(a) of the Code (whether or not such options are Incentive Stock Options), or in the event the Board determines such grant to be in the best interests of the Company to attract or retain a specific Employee, Director or Consultant.
      (c) Consideration . The purchase price of Common Stock acquired pursuant to the exercise of an Option shall be paid, to the extent permitted by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment set forth below. The Board shall have the authority to grant Options that do not permit all of the following methods of payment (or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of the Company to utilize a particular method of payment. The methods of payment permitted by this Section 5(c) are:
           (i) by cash, check, bank draft or money order payable to the Company;

5.


 

           (ii) pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of the stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; or
           (iii) in any other form of legal consideration that may be acceptable to the Board.
      (d) Transferability of Options . The Board may, in its sole discretion, impose such limitations on the transferability of Options (or Shares issued pursuant to an exercise of an Option) as the Board shall determine. In the absence of such a determination by the Board to the contrary, the following restrictions on the transferability of Options shall apply:
           (i) Restrictions on Transfer . An Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder; provided, however , that the Board may, in its sole discretion, permit transfer of the Option in a manner consistent with applicable tax and securities laws upon the Optionholder’s request.
           (ii) Domestic Relations Orders . Notwithstanding the foregoing, an Option may be transferred pursuant to a domestic relations order, provided, however , that an Incentive Stock Option may be deemed to be a Nonqualified Stock Option as a result of such transfer.
           (iii) Beneficiary Designation . Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form provided by or otherwise satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be the beneficiary of an Option with the right to exercise the Option and receive the Common Stock or other consideration resulting from an Option exercise.
      (e) Vesting Generally . The total number of shares of Common Stock subject to an Option may vest and therefore become exercisable in periodic installments that may or may not be equal. The Option may be subject to such other terms and conditions on the time or times when it may or may not be exercised as the Board may deem appropriate. The vesting provisions of individual Options may vary. The provisions of this Section 5(e) are subject to any Option provisions governing the minimum number of shares of Common Stock as to which an Option may be exercised.
      (f) Termination of Continuous Service . Except as otherwise provided in the applicable Option Agreement or other agreement between the Optionholder and the Company, or as otherwise required to comply with Section 409A of the Code, in the event that an Optionholder’s Continuous Service terminates (other than for Cause or upon the Optionholder’s death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination of Continuous Service) but only within such period of time as the Board may specify or, in the absence of specification by the Board, ending on the earlier of (i) the date thirty (30) days following the termination of the Optionholder’s Continuous Service (or such longer or shorter period specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination of Continuous Service, the Optionholder does not exercise his or her Option within the time specified herein or in the Option Agreement (as applicable), the Option shall terminate.

6.


 

      (g) Extension of Termination Date . An Optionholder’s Option Agreement may provide that if the exercise of the Option following the termination of the Optionholder’s Continuous Service (other than for Cause or upon the Optionholder’s death or Disability) would be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of a period of thirty (30) days after the termination of the Optionholder’s Continuous Service during which the exercise of the Option would not be in violation of such registration requirements, or (ii) the expiration of the term of the Option as set forth in the Option Agreement; provided, however, that such thirty (30) day period described in (i) may be modified to the extent required to comply with Section 409A of the Code.
      (h) Disability of Optionholder . In the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination of Continuous Service), but only within such period of time ending on the earlier of (i) the date six (6) months following such termination of Continuous Service (or such longer or shorter period specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination of Continuous Service, the Optionholder does not exercise his or her Option within the time specified herein or in the Option Agreement (as applicable), the Option shall terminate.
      (i) Death of Optionholder . In the event that (i) an Optionholder’s Continuous Service terminates as a result of the Optionholder’s death, or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder’s Continuous Service for a reason other than death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated as the beneficiary of the Option upon the Optionholder’s death, but only within the period ending on the earlier of (A) the date twelve (12) months following the date of death (or such longer or shorter period specified in the Option Agreement), or (B) the expiration of the term of such Option as set forth in the Option Agreement. If, after the Optionholder’s death, the Option is not exercised within the time specified herein or in the Option Agreement (as applicable), the Option shall terminate. If the Optionholder designates a third party beneficiary of the Option in accordance with Section 5(d)(iii), then upon the death of the Optionholder such designated beneficiary shall have the sole right to exercise the Option and receive the Common Stock or other consideration resulting from an Option exercise.
      (j) Termination for Cause . Except as explicitly provided otherwise in an Optionholder’s Option Agreement, in the event that an Optionholder’s Continuous Service is terminated for Cause, the Option shall terminate upon the termination date of such Optionholder’s Continuous Service, and the Optionholder shall be prohibited from exercising his or her Option from and after the time of such termination of Continuous Service.

7.


 

      (k) Non-Exempt Employees . No Option granted to an Employee that is a non-exempt employee for purposes of the Fair Labor Standards Act shall be first exercisable for any shares of Common Stock until at least six (6) months following the date of grant of the Option. The foregoing provision is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option will be exempt from his or her regular rate of pay.
6. Reserved .
7. Covenants of the Company .
      (a) Availability of Shares . During the terms of the Options, the Company shall keep available at all times the number of shares of Common Stock reasonably required to satisfy such Options.
      (b) Securities Law Compliance . The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Options and to issue and sell shares of Common Stock upon exercise of the Options; provided, however , that this undertaking shall not require the Company to register under the Securities Act the Plan, any Option or any Common Stock issued or issuable pursuant to any such Option. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Options unless and until such authority is obtained.
      (c) No Obligation to Notify . The Company shall have no duty or obligation to any holder of an Option to advise such holder as to the time or manner of exercising such Option. Furthermore, the Company shall have no duty or obligation to warn or otherwise advise such holder of a pending termination or expiration of an Option or a possible period in which the Option may not be exercised. The Company has no duty or obligation to minimize the tax consequences of an Option to the holder of such Option.
8. Miscellaneous .
      (a) Use of Proceeds from Sales of Common Stock . Proceeds from the sale of shares of Common Stock pursuant to Options shall constitute general funds of the Company.
      (b) Corporate Action Constituting Grant of Options . Corporate action constituting a grant by the Company of an Option to any Participant shall be deemed completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument, certificate, or letter evidencing the Option is communicated to, or actually received or accepted by, the Participant.
      (c) Stockholder Rights . No Participant shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Common Stock subject to such Option unless and until such Participant has exercised the Option pursuant to its terms and the Participant shall not be deemed to be a stockholder of record until the issuance of the Common Stock pursuant to such exercise has been entered into the books and records of the Company.

8.


 

      (d) No Employment or Other Service Rights . Nothing in the Plan, any Option Agreement or other instrument executed thereunder or in connection with any Option granted pursuant to the Plan shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Option was granted or shall affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate, or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.
      (e) Incentive Stock Option $100,000 Limitation . To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company and any Affiliates) exceeds one hundred thousand dollars ($100,000), the Options or portions thereof that exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Stock Options, notwithstanding any contrary provision of the applicable Option Agreement(s).
      (f) Investment Assurances . The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Option, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Option; and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiring Common Stock subject to the Option for the Participant’s own account and not with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (A) the issuance of the shares upon the exercise or acquisition of Common Stock under the Option has been registered under a then currently effective registration statement under the Securities Act, or (B) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock.
      (g) Withholding Obligations . Unless prohibited by the terms of an Option Agreement, the Company may, in its sole discretion, satisfy any federal, state or local tax withholding obligation relating to an Option by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (i) causing the Participant to tender a cash payment; (ii) withholding shares of Common Stock from the shares of Common Stock issued or otherwise issuable to the Participant in connection with the Option; (iii) withholding cash from an Option settled in cash; or (iv) by such other method as may be set forth in the Option Agreement.

9.


 

      (h) Electronic Delivery . Any reference herein to a “written” agreement or document shall include any agreement or document delivered electronically or posted on the Company’s intranet.
      (i) Deferrals . To the extent permitted by applicable law, the Board, in its sole discretion, may determine that the delivery of Common Stock or the payment of cash, upon the exercise, vesting or settlement of all or a portion of any Option may be deferred and may establish programs and procedures for deferral elections to be made by Participants. Deferrals by Participants will be made in accordance with Section 409A of the Code. Consistent with Section 409A of the Code, the Board may provide for distributions while a Participant is still an employee. The Board is authorized to make deferrals of Options and determine when, and in what annual percentages, Participants may receive payments, including lump sum payments, following the Participant’s termination of employment or retirement, and implement such other terms and conditions consistent with the provisions of the Plan and in accordance with applicable law.
      (j) Compliance with Section 409A of the Code . To the extent that the Board determines that any Option granted under the Plan is subject to Section 409A of the Code, the Option Agreement evidencing such Option shall incorporate the terms and conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code. To the extent practicable and without adverse effects on the Plan or on Optionholders, the Plan and Option Agreements shall be interpreted in a manner that avoids taxation under Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued or amended after the Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event that following the Effective Date the Board determines that any Option may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the Effective Date), the Board may adopt such amendments to the Plan and the applicable Option Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Board determines are necessary or appropriate to (i) exempt the Option from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Option, or (ii) comply with the requirements of Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued or amended after the Effective Date.
9. Adjustments upon Changes in Common Stock; Other Corporate Events .
      (a) Capitalization Adjustments . In the event of a Capitalization Adjustment, the Board shall appropriately adjust: (i) the class(es) and maximum number of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es) and maximum number of securities that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 3(c), (iii) the class(es) and maximum number of securities that may be awarded to any person pursuant to Section 3(d) and (iv) the class(es) and number of securities and price per share of stock subject to outstanding Options. The Board shall make such adjustments, and its determination shall be final, binding and conclusive.

10.


 

      (b) Dissolution or Liquidation . Except as otherwise provided in the Option Agreement, in the event of a dissolution or liquidation of the Company, all outstanding Options shall terminate immediately prior to the completion of such dissolution or liquidation, provided, however , that the Board may, on an extraordinary basis, in its sole discretion, determine on a case by case basis whether to cause some or all Options to become fully vested, and/or exercisable (to the extent such Options have not previously expired or terminated) before the dissolution or liquidation is completed but contingent on its completion.
      (c) Corporate Transaction . The following provisions may apply to Options in the event of a Corporate Transaction unless otherwise provided in the instrument evidencing the Option or any other written agreement between the Company or any Affiliate and the Participant or unless otherwise expressly provided by the Board at the time of grant of an Option. If there is a Corporate Transaction, then the Board, or the board of directors of any corporation or entity assuming the obligations of the Company, may take any one or more of the following actions as to outstanding Options in its sole and absolute discretion:
           (i) Options May Be Continued, Assumed or Substituted . Any surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company) may assume or continue any or all Options outstanding under the Plan or may substitute similar stock awards for Options outstanding under the Plan (including but not limited to, awards to acquire the same consideration paid to the stockholders of the Company pursuant to the Corporate Transaction) in connection with such Corporate Transaction. A surviving corporation or acquiring corporation (or its parent) may choose to assume or continue only a portion of an Option or substitute a similar stock award for only a portion of an Option, or may assume, continue or substitute some Options and not others. The terms of any assumption, continuation or substitution shall be set by the Board in accordance with the provisions of Section 2.
           (ii) Accelerated Vesting of Options . On an extraordinary basis, the Board may, in its sole discretion, determine case by case whether the vesting of any or all Options, and the time at which such Options may be exercised, may be accelerated in full or in part to a date on or prior to the effective time of such Corporate Transaction (contingent upon the effectiveness of the Corporate Transaction) as the Board shall determine; provided, however, that for purposes of this Section, the Agreement evidencing such option may provide for acceleration of vesting without acceleration of exercisability or may contain additional restrictions on the holding period for such Shares as may be deemed advisable by the Board and as may be necessary to comply with Section 409A of the Code.
           (iii) Termination of Options . The Board may provide that all Options (including vested Options that are not exercised) shall immediately terminate and be of no further force or effect as of the effective time of the Corporate Transaction.

11.


 

           (iv) Payment for Options in Lieu of Exercise . The Board may provide that the holder of an Option may not exercise such Option but will receive a payment, in such form as may be determined by the Board, equal in value to the excess, if any, of (A) the value of the property the holder of the Option would have received upon the exercise of the Option (including, at the discretion of the Board, any unvested portion of such Option), over (B) any exercise price payable by such holder in connection with such exercise. To the extent permitted by Section 409A of the Code, the Board may delay the payment under this provision to take into account escrows, earn-outs or other holdbacks or contingencies applicable to the Corporate Transaction.
      (d) Change in Control . On an extraordinary basis, the Board may, in its sole discretion, determine case by case whether an Option may be subject to additional acceleration of vesting and exercisability upon or after a Change in Control as may be provided in the Option Agreement for such Option or as may be provided in any other written agreement between the Company or any Affiliate and the Participant, but in the absence of such an express provision, no such acceleration shall occur.
10. Termination or Suspension of the Plan .
      (a) Plan Term . Unless sooner terminated by the Board pursuant to Section 2, the Plan shall automatically terminate on the day before the tenth (10th) anniversary of the date the Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier. No Options may be granted under the Plan while the Plan is suspended or after it is terminated.
      (b) No Impairment of Rights . Termination of the Plan shall not impair rights and obligations under any Option granted while the Plan is in effect except with the written consent of the affected Participant.
11. Effective Date of Plan .
     This Plan shall become effective on the Effective Date.
12. Choice of Law .
     The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such state’s conflict of laws rules.
      13.  Definitions . As used in the Plan, the definitions contained in this Section 13 shall apply to the capitalized terms indicated below:
      (a)  Affiliate ” means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in Rule 405 of the Securities Act. The Board shall have the authority to determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing definition.
      (b)  Board ” means the Board of Directors of the Company.

12.


 

      (c)  Capitalization Adjustment ” means any change that is made in, or other events that occur with respect to, the Common Stock subject to the Plan or subject to any Option after the Effective Date without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company). Notwithstanding the foregoing, the conversion of any convertible securities of the Company shall not be treated as a transaction “without receipt of consideration” by the Company. For the avoidance of doubt, the 1-for-15 reverse stock split of the Common Stock effected on June 19, 2007 shall not be considered to have occurred after the Effective Date and therefore shall not be considered a Capital Adjustment.
      (d)  Cause ” shall have the meaning set forth in any employment agreement or offer letter between a Participant and the Company or an Affiliate to the extent then effective; provided, however, that if any such employment agreement or offer letter does not contain a definition of “Cause,” then the term shall mean with respect to a Participant, the occurrence of any of the following events: (i) such Participant’s commission of any felony or any crime involving fraud, dishonesty or moral turpitude under the laws of the United States or any state thereof; (ii) such Participant’s attempted commission of, or participation in, a fraud or act of dishonesty against the Company; (iii) such Participant’s intentional, material violation of any contract or agreement between the Participant and the Company or of any statutory duty owed to the Company; (iv) such Participant’s unauthorized use or disclosure of the Company’s confidential information or trade secrets; or (v) such Participant’s gross misconduct. The determination that a termination of the Participant’s Continuous Service is either for Cause or without Cause shall be made by the Company in its sole discretion. Any determination by the Company that the Continuous Service of a Participant was terminated by reason of dismissal without Cause for the purposes of outstanding Options held by such Participant shall have no effect upon any determination of the rights or obligations of the Company or such Participant for any other purpose.
      (e)  Change in Control ” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
           (i) any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (A) on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other Exchange Act Person from the Company in a transaction or series of related transactions the primary purpose of which is to obtain financing for the Company through the issuance of equity securities, or (B) solely because the level of Ownership held by any Exchange Act Person (the “ Subject Person ”) exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage threshold, then a Change in Control shall be deemed to occur;

13.


 

           (ii) there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not Own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of the combined outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or (B) more than fifty percent (50%) of the combined outstanding voting power of the parent of the surviving Entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such transaction;
           (iii) the stockholders of the Company approve or the Board approves a plan of complete dissolution or liquidation of the Company, or a complete dissolution or liquidation of the Company shall otherwise occur, except for a liquidation into a parent corporation; or
           (iv) there is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition.
     For the avoidance of doubt, the term Change in Control shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company.
     Notwithstanding the foregoing or any other provision of this Plan, the definition of Change in Control (or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant shall supersede the foregoing definition with respect to Options subject to such agreement; provided, however , that if no definition of Change in Control or any analogous term is set forth in such an individual written agreement, the foregoing definition shall apply.
      (f)  Code ” means the Internal Revenue Code of 1986, as amended.
      (g)  Committee ” means a committee of one (1) or more Directors to whom authority has been delegated by the Board in accordance with Section 2(c).
      (h)  Common Stock ” means the common stock of the Company.
      (i)  Company ” means Northwest Biotherapeutics, Inc., a Delaware corporation.

14.


 

      (j)  Consultant ” means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such services. However, service solely as a Director, or payment of a fee for such service, shall not cause a Director to be considered a “Consultant” for purposes of the Plan.
      (k)  Continuous Service ” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, shall not terminate a Participant’s Continuous Service. For example, a change in status from an employee of the Company to a consultant to an Affiliate or to a Director shall not constitute an interruption of Continuous Service. To the extent permitted by law, the Board or the chief executive officer of the Company, in that party’s sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any other personal leave. Notwithstanding the foregoing, a leave of absence shall be treated as Continuous Service for purposes of vesting in an Option only to such extent as may be provided in the Company’s leave of absence policy, in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise required by law.
      (l)  Corporate Transaction ” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
           (i) a sale or other disposition of all or substantially all, as determined by the Board in its sole discretion, of the consolidated assets of the Company and its Subsidiaries;
           (ii) a sale or other disposition of at least fifty percent (50%) of the outstanding securities of the Company;
           (iii) the consummation of a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
           (iv) the consummation of a merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares of Common Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash or otherwise.
      (m)  Covered Employee ” shall have the meaning provided in Section 162(m)(3) of the Code and the regulations promulgated thereunder.
      (n)  Director ” means a member of the Board.
      (o)  Disability ” means the permanent and total disability of a person within the meaning of Section 22(e)(3) of the Code.

15.


 

      (p)  Effective Date ” means the later of (i) the date of approval of this Plan by the Board, and (ii) the date the Common Stock is admitted to the Alternative Investments Market of the London Stock Exchange. Notwithstanding the foregoing, no Common Stock shall be issued pursuant to an Option unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within twelve (12) months before or after the date the Plan is adopted by the Board.
      (q)  Employee ” means any person employed by the Company or an Affiliate. However, service solely as a Director, or payment of a fee for such services, shall not cause a Director to be considered an “Employee” for purposes of the Plan.
      (r)  Entity ” means a corporation, partnership, limited liability company or other entity.
      (s)  Exchange Act ” means the Securities Exchange Act of 1934, as amended.
      (t)  Exchange Act Person ” means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (i) the Company or any Subsidiary of the Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their Ownership of stock of the Company; or (v) any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Effective Date of the Plan as set forth in Section 11, is the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities.
      (u)  Fair Market Value ” means, as of any date, the value of the Common Stock determined as follows:
           (i) If the Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) for the last market trading day prior to the date of determination, as reported in The Wall Street Journal or such other source as the Board deems reliable.
           (ii) In the absence of such markets for the Common Stock, the Fair Market Value shall be determined by the Board in good faith.
      (v)  Incentive Stock Option ” means an option granted pursuant to Section 5 of the Plan that is intended to be, and qualifies as, an “incentive stock option” within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

16.


 

      (w)  Non-Employee Director ” means a Director who either (i) is not a current employee or officer of the Company or an Affiliate, does not receive compensation, either directly or indirectly, from the Company or an Affiliate for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act (“ Regulation S-K ”)), does not possess an interest in any other transaction for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.
      (x)  Nonstatutory Stock Option ” means any option granted pursuant to Section 5 of the Plan that does not qualify as an Incentive Stock Option.
      (y)  Officer ” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
      (z)  Option ” means an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted pursuant to the Plan.
      (aa)  Option Agreement ” means a written agreement between the Company and an Optionholder evidencing the terms and conditions of an Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan.
      (bb)  Optionholder ” means a person to whom an Option is granted pursuant to the Plan or, if permitted under the terms of this Plan, such other person who holds an outstanding Option.
      (cc)  Outside Director ” means a Director who either (i) is not a current employee of the Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated corporation” who receives compensation for prior services (other than benefits under a tax-qualified retirement plan) during the taxable year, has not been an officer of the Company or an “affiliated corporation,” and does not receive remuneration from the Company or an “affiliated corporation,” either directly or indirectly, in any capacity other than as a Director, or (ii) is otherwise considered an “outside director” for purposes of Section 162(m) of the Code.
      (dd)  Own ,” “ Owned ,” “ Owner ,” “ Ownership ” A person or Entity shall be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities.
      (ee)  Participant ” means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
      (ff)  Plan ” means this Northwest Biotherapeutics, Inc. 2007 Stock Option Plan.
      (gg)  Rule 16b-3 ” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.

17.


 

      (hh)  Securities Act ” means the Securities Act of 1933, as amended.
      (ii)  Subsidiary ” means, with respect to the Company, (i) any corporation of which more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership, limited liability company or other entity in which the Company has a direct or indirect interest (whether in the form of voting or participation in profits or capital) of more than fifty percent (50%).
      (jj)  Ten Percent Stockholder ” means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Affiliate.

18.

 

EXHIBIT 10.6

(NORTHWEST BIOTHERAPEUTICS GRAPHIC)                     
               
 
Northwest
    t (425) 608-3008     www.nwbio.com
 
Biotherapeutics, Inc.
        (800) 519-0755     OTCBB: NWBT
 
 
    f (425) 608-3009      
 
18701 120th Avenue NE
           
 
Suite 101
           
 
Bothell, WA 98011
           


June 18, 2007
Dr. Alton Boynton
18701 120 th Avenue NE, Suite 101
Bothell, WA 98011
Dear Dr. Boynton:
Your service to Northwest Biotherapeutics has been valuable and much appreciated over the years. The Board of Directors proposes to enter into an employment agreement with you for up to four more years of service in the senior management of the Company, with the following key terms, conditional upon the Admission to trading of the Company’s AIM Placing shares:
    Title : CEO and President (though this may change if the Company recruits a new CEO in due course).
 
    Term : Up to 4 years
 
    Annual Salary : $331,250 (subject to potential increases based on annual review by the Compensation Committee of the Board of Directors)
 
    Equity : Sufficient options to result in your holding 4% of the stock of the Company, on a fully diluted basis (i.e., including all of the shares issuable under options and warrants outstanding or reserved in the employee pool) immediately after Admission of the AIM Placing Shares for trading, when added to the total equity securities (stock, options, warrants, etc., regardless of terms) that you hold as of the time of Admission. Vesting shall occur over a 4-year period as defined in the Stock Option Grant Notice.
 
    Bonuses : To be determined in the Board’s discretion for extraordinary and unanticipated accomplishments.
 
    Termination : Employment will be at will. You may resign at any time with the notice required below, or without such notice (in which case certain consequences apply as described below). The Company may terminate your employment at any time “For Cause” or “Without Cause.” “Cause” is defined as, but not limited to, malfeasance, material non-performance or materially inadequate performance of your duties following written notice or other communication from the Board of such inadequate performance and a reasonable period of time to cure it one time. The recruitment of a CEO shall not be deemed a termination.
 
    Effect of termination or resignation on options :
    If your employment is terminated For Cause, your options will stop vesting, and options which are already vested as of the date of termination shall expire 24 hours after such termination.

 


 

    If your employment is terminated Without Cause, options will continue to vest under their above stated schedule, and will be exercisable for up to their full exercise period, so long as you execute a separation and release agreement reasonably acceptable to the Company, and you do not work for or with a Competing Company (as defined below) in any capacity (employee, director, adviser, collaborator, etc.) while the vesting period is continuing. The term “Competing Company” means a business that is developing immunotherapies for cancer.
 
    If you resign, the vesting of your options will cease. If your resignation complies with the notice and best efforts and good faith requirements below, your options will be exercisable for 90 days following the last day of employment. If your resignation does not comply with the notice and best efforts and good faith requirements below, your options will only be exercisable for 15 days following the last day of employment.
    Outside activities : During the term of this Agreement, you shall not engage in any outside business activities except with express prior approval of the Board.
 
    Non-competition : You agree not to work for or with any Competing Company (as defined above) for 1 year after resignation, termination or expiration of your employment with the Company. You must execute a non-competition agreement with the Company providing for this arrangement.
 
    Assignment of inventions; confidentiality : All inventions conceived or developed by you during your employment by the Company must be assigned to the Company. You must also execute the Company’s standard invention assignment agreement and a limited power of attorney enabling the Company to make filings and take actions necessary to implement your assignments of inventions. You must also execute the Company’s standard confidentiality agreement.
 
    Vacation and sick leave: 4 weeks of vacation, no carryover (use it or lose it) except in special circumstances with prior Board approval and then only up to 2 weeks; 2 weeks of sick leave, to be used only for sickness and medical appointments for yourself or family members.
 
    Notice of resignation; best efforts : If you resign, you will give at least 90 days advance notice, and during those 90 days will devote best efforts, in good faith, to the Company’s business and any personnel transition. Failure to give 90 days notice will result in clawback of any bonuses paid to you and option vesting that occurred in the 6 months prior to the resignation announcement.

 


 

The Board hopes that you will find these terms agreeable. If so, please indicate your acceptance by countersigning below. We look forward to your continued important role in the Company for the next several years.
Sincerely,
             
NWBT BOARD OF DIRECTORS   I have read and accept this employment offer:
By:
      By:    
 
           
 
           
 
           
Name:
      Name:    
Title:
           
Date:
      Date:    

 

 

EXHIBIT 10.7

(NORTHWEST BIOTHERAPEUTICS GRAPHIC)                     
               
 
Northwest
    t (425) 608-3008     www.nwbio.com
 
Biotherapeutics, Inc.
        (800) 519-0755     OTCBB: NWBT
 
 
    f (425) 608-3009      
 
18701 120 th Avenue NE
           
 
Suite 101
           
 
Bothell, WA 98011
           


June 18, 2007
Dr. Jim Johnston
18701 120 th Avenue NE, Suite 101
Bothell, WA 98011
Dear Mr. Johnston:
Your service to Northwest Biotherapeutics has been valuable and much appreciated over the past year. The Board of Directors proposes to enter into an employment agreement with you for up to one year of service in the senior management of the Company, with the following key terms, conditional upon the Admission to trading of the Company’s AIM Placing shares:
    Title : CFO and Chief General Counsel
 
    Term : Up to 1 year
 
    Annual Salary : $180,000 for devotion of 60% of your time to Company business (a full-time rate of $300,000).
 
    Equity : 66,667 options to purchase Common Stock of the Company to be granted as promptly as practicable after Admission of the AIM Placing Shares for trading. Vesting shall occur over the 1-year employment term as defined in the Stock Option Grant Notice.
 
    Termination : Employment will be at will. You may resign and at time with the notice required below or without such notice (in which case certain consequences will apply as described below). The Company may terminate your employment “For Cause” or “Without Cause.” “Cause” is defined as, but not limited to, malfeasance, material non-performance or materially inadequate performance of your duties following written notice or other communication from the Board of such inadequate performance and a reasonable period of time to cure it one time.
 
    Effect of termination or resignation on options : Vesting of your stock options will cease upon the termination of your employment or resignation.
    If your employment is terminated For Cause, options which are already vested as of the date of termination shall expire 24 hours after such termination.

 


 

    If your employment is terminated Without Cause, options will be exercisable for up to their full exercise period, so long as you execute a separation and release agreement reasonably acceptable to the Company, and you do not work for or with a Competing Company (as defined below) in any capacity (employee, director, adviser, collaborator, etc.) for one year following the termination of your employment. The term “Competing Company” means a business that is developing immunotherapies for cancer.
 
    If you resign, the vesting of your options will cease. If your resignation complies with the notice, best efforts and good faith requirements below, your options will be exercisable for 45 days following the last day of your employment. If your resignation does not comply with the notice, best efforts and good faith requirements below, your options will only be exercisable for 15 days following the last day of your employment.
    Outside activities : During the term of this Agreement, you shall not engage in any outside business activities except with express prior approval of the Board.
 
    Non-competition : You agree not to work for or with any Competing Company (as defined above) for 1 year after resignation, termination or expiration of your employment with the Company. You must execute a non-competition agreement with the Company providing for this arrangement.
 
    Assignment of inventions; confidentiality : All inventions conceived or developed by you during your employment by the Company must be assigned to the Company. You must also execute the Company’s standard invention assignment agreement and a limited power of attorney enabling the Company to make filings and take actions necessary to implement your assignments of inventions. You must also execute the standard confidentiality agreement.
 
    Vacation and sick leave: 12 business days of vacation (based upon a full-time rate of 4 weeks of vacation, pro rated to your employment by the Company for 60% of your time), no carryover (use it or lose it) except in special circumstances with prior Board approval and then only up to 2 weeks; 6 business days of sick leave (based upon a full-time rate of 2 weeks of sick leave, pro rated to your employment by the Company for 60% of your time), to be used only for sickness and medical appointments for yourself or family members.
 
    Notice of resignation : If you resign, you will give at least 45 days advance notice, and during those 45 days will devote best efforts, in good faith, to the Company’s business and any personnel transition. Failure to give 45 days notice will result in clawback of any bonuses paid to you and option vesting that occurred in the 135 days prior to the resignation announcement.

 


 

The Board hopes that you will find these terms agreeable. If so, please indicate your acceptance by countersigning below. We look forward to your continued important role in the Company for the next several years.
Sincerely,
             
NWBT BOARD OF DIRECTORS   I have read and accept this employment offer:
By:
      By:    
 
           
 
           
 
           
Name:
      Name:    
Title:
           
Date:
      Date:    

 

 

EXHIBIT 10.8
             
(NORTHWEST BIOTHERAPEUTICS)
  Northwest
Biotherapeutics, Inc.

18701 120 th Avenue NE
Suite 101
Bothell, WA 98011
  t (425) 608-3008
  (800) 519-0755
f (425) 608-3009
  www.nwbio.com
OTCBB: NWBT
June 15, 2007
Ms. Linda Powers
9306 Kendale Road
Potomac, Maryland 20854
Dear Ms. Powers:
On behalf of the Board of Directors of Northwest Biotherapeutics, Inc. (the “Company”), we are delighted that you have accepted the invitation to join the Board of Directors as the Chairperson of the Board with effect from May 17, 2007. This letter, the terms of which are conditioned on the admission of the Company’s share of common stock to trading on the London Stock Exchange’s AIM market, confirms the terms of your appointment to the Board of Directors and as the Chairperson of the Board.
Your appointment will continue, and the terms of this letter will apply, until terminated pursuant to the bylaws of the Company.
In your role as a member of the Board of Directors and Chairperson of the Board, you will be expected to attend all meetings of the Board of Directors of the Company and general meetings of the Company’s stockholders and such other meetings relating to the Company as it is appropriate for you to attend for the performance of your role. Prior to each meeting of the Board, you will be informed of the time and location of the meeting and will receive copies of any relevant documents to be discussed at the meeting to the extent that you did not arrange the time or location of the meeting or prepare copies of the relevant documents.
Your compensation for service on the Board of Directors will be approximately £4,167 per month (equivalent to £50,000 per year), paid in monthly installments on the first business day following the month in which it is earned. To receive each payment, you must be Director of the Company on the last day of the month for which it is earned. While the Company anticipates that your annual compensation will not be decreased in subsequent years, the Company reserves the right to modify your compensation prior to the beginning of any calendar year. You may also be eligible for grants under the 2007 Stock Option Plan, which will be determined in the Company’s discretion.
As a Director, you will be required to comply with the reporting and trading requirements of Section 16 of the Securities Exchange Act of 1934 and the Company’s share trading policy. Please contact Jim Johnston for more information on the requirements of the Act and the Company’s internal compliance procedures.

 


 

In addition to the indemnification provisions in the Company’s bylaws and certificate of incorporation, the Company will enter into an indemnification agreement with each director, a copy of which is attached.
If you are asked to join the board of another company, please be aware that you are required to discuss the invitation with me or Jim Johnston so that we can determine whether there are any present or potential conflicts associated with joining the other board.
We look forward to having you join us as a member of the Board. I would appreciate you contacting me to discuss this matter further if you have any questions.
Very truly yours,
Alton L. Boynton
President & Chief Executive Officer
Attachment
Linda F. Powers:                                             
Date:                                                                

 

 

EXHIBIT 10.9
             
(NORTHWEST BIOTHERAPEUTICS)
  Northwest
Biotherapeutics, Inc.

18701 120 th Avenue NE
Suite 101
Bothell, WA 98011
  t (425) 608-3008
  (800) 519-0755
f (425) 608-3009
  www.nwbio.com
OTCBB: NWBT
June 14, 2007
Mr. R. Steve Harris
Old Tiles
Westwood Road
Windlesham
Surrey
GU20 6NB
Dear Mr. Harris:
On behalf of the Board of Directors of Northwest Biotherapeutics, Inc. (the “Company”), I wish to extend to you an invitation to join the Board of Directors. Your appointment is conditioned on the admission of the Company’s shares of common stock to trading on the London Stock Exchange’s AIM market and will be effective from the date of such admission.
Your appointment will continue, and the terms of this letter will apply, until terminated pursuant to the bylaws of the Company.
In your role as a member of the Board of Directors, you will be expected to attend all meetings of the Board of Directors of the Company and general meetings of the Company’s stockholders and such other meetings relating to the Company as it is appropriate for you to attend for the performance of your role. Prior to each meeting of the Board, you will be informed of the time and location of the meeting and will receive copies of any relevant documents to be discussed at the meeting.
Your compensation for service on the Board of Directors will be approximately £2,500 per month (equivalent to £30,000 per year), paid in monthly installments on the first business day following the month in which it is earned. To receive each payment, you must be Director of the Company on the last day of the month for which it is earned. While the Company anticipates that your annual compensation will not be decreased in subsequent years, the Company reserves the right to modify your compensation prior to the beginning of any calendar year. You may also be eligible for grants under the 2007 Stock Option Plan, which will be determined in the Company’s discretion.
As a Director, you will be required to comply with the reporting and trading requirements of Section 16 of the Securities Exchange Act of 1934 and the Company’s share trading policy. Please contact Jim Johnston for more information on the requirements of the Act and the Company’s internal compliance procedures.

 


 

In addition to the indemnification provisions in the Company’s bylaws and certificate of incorporation, the Company will enter into an indemnification agreement with each director, a copy of which is attached.
If you are asked to join the board of another company, please be aware that you are required to discuss the invitation with me or Jim Johnston so that we can determine whether there are any present or potential conflicts associated with joining the other board.
We look forward to having you join us as a member of the Board. I would appreciate you contacting me to discuss this matter further if you have any questions. I would be grateful if you would indicate your acceptance of your appointment by signing the attached copy of this letter.
Very truly yours,
Alton L. Boynton
President & Chief Executive Officer
Attachment
Steve Harris:                                                   
Date:                                                                

 

 

EXHIBIT 14.1
Northwest Biotherapeutics, Inc.
Code of Ethics
Effective as of June 22, 2007
I. Introduction
     A. The Code and Compliance with the Code
Northwest Biotherapeutics, Inc. (“ we ”, “ us ” or the “ Company ”) is committed to conducting our business with honesty and integrity. These values are important to us. This Code of Ethics (the “ Code ”) reflects the business practices and principles of behavior that support this commitment. Our Board of Directors is responsible for setting the standards of conduct contained in this Code and for updating these standards as appropriate to reflect legal and regulatory developments. We expect every employee and member of our Board of Directors (each member of our Board of Directors, a “ director ”) to read and understand this Code and its application to the performance of his or her business responsibilities. Our Board of Directors and senior management are committed to assisting employees in developing a clear understanding of the fundamental requirements of this Code, and in providing education to employees concerning their responsibilities as members of the Company’s community. We will hold each of our employees and directors accountable for adherence to this Code. Those who violate this Code will be subject to disciplinary action, up to and including termination of employment.
This Code does not describe every practice or principle related to honest and ethical conduct. This Code is an integral part of our Employee Handbook. The following additional policies found in our Employee Handbook supplement or amplify this Code in certain areas and should be read in conjunction with this Code: Prohibited Conduct, Confidentiality, Publicity/Statements to the Media and Insider Trading Policy.
Employees and directors may seek guidance regarding this Code by contacting his or her immediate supervisor or the Compliance Officer (see below).
     B. Compliance Officer
Any questions about this Code or the appropriate course of conduct in a particular situation should be directed to an employee’s immediate supervisor or the Compliance Officer. The Board of Directors has designated our Chief Financial Officer as the Compliance Officer. Employees or directors may make any report or complaint provided for in this Code to the Compliance Officer. The Compliance Officer will refer complaints submitted, as appropriate, to the Board of Directors or the Audit Committee of the Board of Directors (the “Audit Committee” ).

 


 

II. Standards of Ethical Conduct
     A. Compliance with Applicable Law
All employees must comply with all of the laws, rules and regulations of the United States and other countries, as well as the states, counties, cities and other jurisdictions, applicable to the us or our subsidiaries.
This Code does not summarize all laws, rules and regulations applicable to us or our business. You should consult the various guidelines we have prepared on specific laws, rules and regulations which you can find summarized in the Employee Handbook.
Each employee and director is personally liable for intentional violations of the law. Employees in a supervisory capacity and directors may be liable for violations committed by employees under their supervision. Every employee and director is expected to be diligent in preventing, detecting and promptly reporting violations of the law or instances of non-conformance.
Please consult with your supervisor or the Compliance Officer if you have questions about laws that you think may be applicable to us or our business.
     B. Public Company Reporting
We are a public company. It is of critical importance that our filings in the United States with the Securities and Exchange Commission and in the UK with the London Stock Exchange (the “ LSE” ) be full, fair, accurate, timely and understandable. Depending on their respective positions with us, employees and directors may be called upon to provide information necessary to assure that our public reports meet these requirements. We expect employees and directors to take this responsibility very seriously and to provide prompt and accurate answers to inquiries related to our public disclosure requirements. Employees and directors are prohibited from directly or indirectly including any false or materially misleading statement in any public disclosure by us and from omitting, or causing others to omit, any material fact necessary to prevent a statement made in connection with any public disclosure from being misleading. Employees and directors involved in the preparation of reports and documents filed with, or submitted to, the Securities and Exchange Commission, and The Nasdaq Stock Market or the LSE, and in other public communications made by us, must prepare those statements in accordance with all applicable laws, rules and regulations.
Employees and directors involved in the preparation of our financial statements must also prepare those statements in accordance with Generally Accepted Accounting Principles, consistently applied, and any other applicable accounting standards and rules so that the financial statements materially, fairly and completely reflect our business transactions and financial condition. Further, Company policy prohibits any employee or director from knowingly making or causing others to make a misleading, incomplete or false statement to an accountant or an attorney in connection with an audit or any filing with any governmental or regulatory entity, including the Securities and Exchange Commission, The Nasdaq Stock Market and the LSE.

 


 

In addition, an employee or director must not omit or cause others to omit any material fact that is necessary to prevent a statement made in connection with any audit, public filing or examination of our financial statements from being misleading.
     C. Accuracy of Business Records
All of our books, invoices, records, accounts, funds, assets and laboratory notebooks must be created and maintained to reflect fairly and accurately and in reasonable detail the underlying activity and transactions. No entries may be made that intentionally conceal or disguise the true nature of any of our activities or transactions. Records must be maintained to comply with applicable statutory, regulatory or contractual requirements, as well as those pursuant to prudent scientific and business practices. Our policy prohibits any employee or director from directly or indirectly falsifying or causing others to falsify any of our documentation.
In addition, if an employee or director believes that our books and records are not being maintained in accordance with these requirements, the employee or director should report the matter directly to their supervisor, to the Compliance Officer or to the Chair of the Audit Committee.
Destruction or falsification of any document that is potentially relevant to a violation of law or a government investigation may lead to prosecution for obstruction of justice. Therefore, if an employee or director has reason to believe that a violation of the law has been committed or that a government criminal or regulatory investigation has been, or is about to be, commenced, he or she must retain all records (including computer records) that are or could be relevant to an investigation of the matter, whether conducted by us or by a governmental authority. Questions with regard to destruction or retention of documents in this context should be directed to the Compliance Officer.
     D. Research Integrity
Research integrity is fundamental to the scientific process and our ability to bring products to market. All of our research and development must be conducted according to all applicable laws and regulations and to the generally accepted ethical standards of the scientific community. Scientific misconduct, such as the fabrication, falsification or plagiarism in proposing, conducting or reporting research is prohibited.
     E. Conflicts of Interest
A “conflict of interest” may exist whenever the private interests of an employee or director conflict in any way (or even appear to conflict) with our interests. While our employees and directors should be free to make personal investments and enjoy social relations and normal business courtesies, they must not have any personal interests that adversely influence the performance of their job responsibilities. A conflict situation can arise when an employee or director takes actions or has interests that may make it difficult to perform work objectively and effectively. Conflicts of interest may also arise when an employee or director, or a member of his or her family, receives improper personal benefits as a result of his or her position in the Company, whether received from us or a third party. Gifts, loans to, or guarantees of obligations of, employees and directors may create conflicts of interest. In addition, it is a conflict of interest for an employee to work simultaneously for us and a

 


 

competitor or one of our customers or suppliers absent an express written consent or waiver from us.
Conflicts of interest may arise when doing business with or competing with organizations in which family members of employees or directors have an ownership or employment interest. Family members include spouses, domestic partners, parents, children, siblings and in-laws. Employees and directors may not conduct business on our behalf and may not use their influence to get us to do business with family members or an organization with which an employee or director or their family member has a significant financial or employment interest unless specific approval has been granted in advance. As a guide, “a significant financial interest” is defined as ownership by an employee or director and/or their family member of more than 1% of the outstanding securities or capital value of a business entity or that represents more than 5% of the total assets of the employee or director and/or family member.
We encourage good supplier relations. However, employees and directors may not benefit personally, whether directly or indirectly, from any purchase of goods or services for or from us. Employees and directors whose responsibilities include purchasing, or who have contact with suppliers or service providers, must not exploit their position for personal gain. Under no circumstances may any employee or director receive cash or cash equivalents from any supplier, whether directly or indirectly.
Conflicts of interest are to be scrupulously avoided, and if a conflict of interest is unavoidable, it must be disclosed to us at the earliest opportunity so that a determination can be made whether it is permissible. Employees who become aware of a conflict or potential conflict of interest must report the matter to their supervisor or to the Compliance Officer. Directors must report any conflicts of interest, or potential conflicts of interest, to the Compliance Officer or to the Board of Directors. Supervisors who receive reports regarding any conflicts of interest, or potential conflicts of interest, are to report the matter to the Compliance Officer. The Compliance Officer will review any such information, conduct an investigation if necessary and report the results to the Chief Executive Officer. The Compliance Officer and the Chief Executive Officer will determine if a conflict of interest exists, or will exist, and if so, whether the Company should approve the transaction or relationship notwithstanding the conflict of interest. The Compliance Officer will report to the Board of Directors periodically about reported conflicts or potential conflicts. Conflicts of interest may not always be clear-cut, so if you have a question, you should consult with your supervisor or the Compliance Officer.
     F. Corporate Opportunity
Except as may be approved by the Board of Directors or a committee of independent directors, employees and directors are prohibited from (a) taking for themselves personally any opportunities that belong to us or are discovered through the use of corporate property, information or position; (b) using corporate property, information or position for personal gain; and (c) competing with the Company.
     G. Confidentiality
All employees, under the Non-disclosure Agreement they signed when they joined the Company, and all directors, must maintain the confidentiality of confidential information

 


 

entrusted to them by us or our suppliers or customers, except when disclosure is authorized by us or required by laws, regulations or legal proceedings. As more fully described in the Non-disclosure Agreement, “confidential information” includes, but is not limited to, information and facts concerning business plans, customers, future customers, suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and materials, financial information, sales prospects, client lists, inventions, or any other scientific, technical, trade or business secret or confidential or proprietary information. Whenever feasible, employees and directors should consult the Compliance Officer if they believe they have a legal obligation to disclose confidential information.
     H. Fair Dealing
All employees and directors should endeavor to deal fairly with each other and with our customers, suppliers, and competitors. None should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair dealing practice. Stealing proprietary information, misusing trade secret information that was obtained without the owner’s consent, or inducing such disclosures by past or present employees of other companies is prohibited.
     I. Protection and Proper Use of Company Assets
All Employees should protect our assets and ensure their efficient use. Theft, carelessness and waste have a direct impact on our financial results. All of our assets should be used for legitimate business purposes. Employees and directors are not permitted to take or make use of, steal, or knowingly misappropriate our assets, including any of our confidential information, for their own use, the use of another or for an improper or illegal purpose. Employees and directors are not permitted to remove or dispose of anything of value belonging to us without our consent. No employee or director may destroy any of our assets without permission. Incidental personal use may be appropriate for certain of our assets, but you should check with a supervisor to determine what may be appropriate.
     J. Frauds and Thefts
Company policy prohibits fraudulent activity and requires that incidents of fraud and theft relating to us are promptly investigated, reported and, where appropriate, prosecuted. Fraudulent activities can include, but are not limited to: embezzlement; forgery or alteration of negotiable instruments such as Company checks or drafts; misappropriation of our, employee, customer, collaborator or supplier assets; conversion to personal use of cash, securities, supplies or any other of our asset; unauthorized handling or reporting of our transactions; or falsification of our records.
     K. Relations With Government Agencies Generally
We must take special care to comply with all the special legal and contractual obligations applicable to transactions with government authorities. Good communications and relationships with federal, state, provincial and municipal elected and appointed officials are important to us. Violations of such laws may result in penalties and fines, as well as debarment or suspension from government contracting, or possible criminal prosecution of individual employees or directors or us.

 


 

     L. Foreign Corrupt Practices Act
We, our employees, directors and agents must strictly comply with the United States Foreign Corrupt Practices Act of 1977 (FCPA). The FCPA applies to all U.S. citizens and employees and agents of U.S. corporations regardless of their nationality and prohibits the giving or promising of anything of value to any foreign government official or candidate for public office in order to obtain or retain business. All employees and directors must be diligent and vigilant in selecting and managing anyone retained to assist in obtaining or maintaining government contracts or other business opportunities in foreign countries.
     M. Records and Submissions
We are required to compile and maintain numerous records and substantial information, and to file reports and applications with various government agencies. In most cases, the laws under which these agencies operate make it a crime to knowingly submit false or incomplete information, to fail to submit required information, or to fail to submit information within the required time period. Accordingly, all employees or directors who prepare information, records, or submissions for governmental agencies, or who otherwise deal with such agencies, must do so diligently, accurately, completely, and with absolute integrity.
     N. Responding to Government and Other Inquiries
It is Company policy to cooperate with all reasonable requests concerning our operations from United States, state, municipal and foreign government agencies. Employees and directors must immediately (and before any responsive action is taken) forward any such requests, including requests for interviews or access for government officials to our facilities and documents, to the Compliance Officer.
For those employees who deal with regulatory entities and governmental authorities on a routine basis as part of their job function, referral to the Compliance Officer is appropriate where an inquiry or contact is out of the ordinary course of business or involves a potential legal or disciplinary action of any kind.
     O. Tax Violations
We and our employees and directors, whether acting on behalf of the Company or individually, are not permitted to (i) attempt to evade taxes or the payment of taxes; (ii) make false statements to local tax authorities regarding any matter; (iii) file fraudulent returns, statements, lists or other documents; (iv) conceal property or withhold records from local tax authorities; (v) willfully fail to file tax returns, keep required records or supply information to local tax authorities; or (vi) willfully fail to collect, account for or pay a tax. Moreover, employees and directors may not interfere with the administration of the tax laws (e.g., bribing a tax agent). Employees and directors are required to notify the Compliance Officer or the Chief Financial Officer immediately of inquiries from a tax authority, including summons to testify or produce books, accounts, records, memoranda or other papers.

 


 

III. Reporting Violations of this Code
     A. Procedure for Submitting Accounting Complaints
The Audit Committee is responsible for establishing procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls or auditing matters. Employees or directors who have concerns or complaints regarding such matters are encouraged to promptly submit those concerns or complaints to the Audit Committee, which, subject to its duties arising under applicable law, regulations and legal proceedings, will treat such submissions confidentially.
Such concerns or complaints may be made anonymously by calling our complaints hotline, which is available 24 hours a day, seven days a week and managed by an independent third-party vendor. The hotline phone number and other instructions for calling the hotline are provided to each employee, or you may contact our human resources department to obtain a copy of these instructions. Such submissions will automatically be directed to the attention of the Compliance Officer, who will be responsible for bringing such submissions to the attention of the Audit Committee, as appropriate. In addition, the Compliance Officer will periodically report to the Audit Committee on all such submissions.
     B. Procedure for Reporting Other Illegal or Unethical Behavior
Employees and directors are encouraged to promptly contact a supervisor, manager, the Compliance Officer or human resources if he or she believes that an employee or director has engaged in illegal conduct or any violation of this Code. Such reports may be made anonymously, as described below. Confidentiality will be protected, subject to applicable law, regulation or legal proceeding.
We have established the following procedures for reporting violations or potential violations of this Code. Employees may report a potential violation to their supervisor. Employees who are not comfortable reporting to their supervisor or who do not get a satisfactory response may contact the Compliance Officer or the Chair of the Audit Committee or use the anonymous reporting procedures described above.
Supervisors who receive information concerning activity that may violate this Code or an applicable law, rule or regulation should report the matter to the Compliance Officer. Supervisors who are not comfortable reporting to Compliance Officer or who do not get a satisfactory response may contact the Chief Executive Officer or the Chair of the Audit Committee. Moreover, any violations or possible violations that implicate the Compliance Officer, the Chief Executive Officer or senior executive officers may be made directly to the Chair of the Audit Committee or use the anonymous reporting procedures described below. Directors may report a potential violation to the Compliance Officer or to the Chair of the Audit Committee.
Reports of potential violations of this Code or an applicable law, rule or regulation, by employees or directors may be made anonymously to our complaints hotline as described above under “Procedure for Submitting Accounting Complaints.”
All reports and inquiries will be handled confidentially to the greatest extent possible under the circumstances. Reporting persons may choose to remain anonymous, though in some

 


 

cases that could make it more difficult for that individual to track the resolution of their report. Reports should include as much information as possible regarding the potential violation. No employee or director will be subject to retaliation or punishment for reporting in good faith suspected unethical or illegal conduct or for coming forward to alert us of any questionable situation.
IV. Enforcement of this Code
Our Board of Directors and senior management encourage all employees and directors to study this Code and to bring to their supervisors or the Compliance Officer any questions or concerns they may have about the Code. Compliance with this Code is expected, in order to support our commitment to honest and ethical practices in our business. Employees or directors who fail to comply with these policies will be subject to disciplinary action, up to and including termination of employment or, if warranted, legal proceedings by us. The following are examples of conduct that may result in discipline:
    actions that violate this Code;
 
    requesting others to violate this Code;
 
    failure to report a known or suspected violation of this Code;
 
    failure to cooperate in investigations of possible violations of this Code; and
 
    failure to demonstrate the leadership and diligence needed to ensure compliance with this Code and applicable law.
We intend such disciplinary action to reflect our belief that all employees and directors should be held accountable to the standards of conduct set forth herein. It is important to understand that violation of certain of these policies may subject us and the individual employee or director involved to civil liability and damages, regulatory sanction and/or criminal prosecution. We are responsible for satisfying the regulatory reporting, investigative and other obligations that may follow the identification of a violation. To ensure prompt and consistent enforcement of this Code, the Audit Committee will monitor all disciplinary action regarding employees or directors for violations of this Code.
     A. No Retaliation Policy
Company personnel may report any violation of this Code or other misconduct openly or anonymously without fear of retaliation. We will not discipline, discriminate against or retaliate against any employee who reports such conduct or who cooperates in any investigation or inquiry regarding such conduct, unless it is determined that the report was made with knowledge that it was false.
Anyone who participates in any form of retaliation is subject to disciplinary action including termination. No hardship, loss of benefit, or adverse employment action may be imposed on an employee for the following:
    filing or otherwise participating in a bona fide complaint;

 


 

    acting as a witness in an investigation of a complaint; or
 
    serving as an investigator of a complaint.
If any Company personnel believes that he or she is being retaliated against, or is aware of such retaliation, you should immediately report the issue through the process described above under “Reporting Violations of this Code.”
     B. Waivers/Modifications
In certain limited situations and on a case-by-case basis, we may waive application of this Code to employees or directors. Any waiver of this Code for executive officers, senior financial officers or directors requires the express written approval of the Board of Directors or the Audit Committee. Waivers of this Code for any other Company personnel requires the express written approval of the Compliance Officer and the Chief Executive Officer, acting jointly. Furthermore, as required by applicable law, we will promptly disclose to its stockholders any waivers granted to any of its executive officers, senior financial officers or directors.
We are committed to continuously reviewing and updating our policies and procedures. Therefore, this Code is subject to modification. Any amendment to provisions of this Code must be approved by the Board of Directors and promptly disclosed to stockholders as required by applicable law.

 

 

EXHIBIT 99.1

(NORTHWEST BIOTHERAPEUTICS GRAPHIC)                     
               
 
Northwest
    18701 120 th Avenue NE     www.nwbio.com
 
Biotherapeutics, Inc.
    Suite 101     OTCBB: NWBT
 
 
    Bothell, WA 98011      


Media Contact:
Lorie Calvo
425-608-3008
Northwest Biotherapeutics Closes its Placement of Shares with Foreign Institutional Investors
BOTHELL, Washington, June 22, 2007 — Northwest Biotherapeutics, Inc. today announced that its has placed 15,789,473 shares of its common stock with foreign institutional investors at a price of £0.95 per share (in each case, after giving affect to the company’s reverse stock split of its outstanding shares of common stock at an exchange ratio of 15 to 1). The gross proceeds from the placement were approximately £15 million, while net proceeds from the offering, after deducting commissions and expenses, were approximately £13.1 million. The Company plans to use the net proceeds from the placement to fund clinical trials, product and process development, working capital and repayment of certain existing debt.
This announcement does not constitute an offer to sell, or a solicitation of an offer to purchase, securities in the United States. The securities offered in the placing and referred to herein have not been, and will not be, registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. This notice is issued pursuant to Rule 135c of the Securities Act of 1933.

 

EXHIBIT 99.2
(NORTHWEST BIOTHERAPEUTICS LETTERHEAD)
Media Contact:
Lorie Calvo
425-608-3008
NORTHWEST BIOTHERAPEUTICS ANNOUNCES
EFFECTIVENESS OF REVERSE STOCK SPLIT
     Bothell, Washington, June 22, 2007 — Northwest Biotherapeutics, Inc. today announced that its one-for-fifteen reverse stock split of common shares previously authorized by its Board of Directors and the stockholders became effective on June 19, 2007 upon the filing of a certificate of amendment to the Company’s Certificate of Incorporation with the Secretary of State of the State of Delaware.
     As a result of the reverse stock split, every 15 shares of Northwest Biotherapeutics’ common stock will be combined into one common share. No scrip or fractional certificates will be issued in connection with the reverse stock split. Stockholders who would be entitled to fractional shares will receive cash in lieu of receiving fractional shares. The reverse stock split results in similar adjustments to Northwest Biotherapeutics’ outstanding common stock options and warrants and shares of common stock reserved for issuance pursuant to its current equity plans.
     The Company’s shares will continue to trade on the Over-the-Counter bulletin board under the symbol NWBT. Northwest Biotherapeutics anticipates that its common shares will be quoted under a new CUSIP number (66737P 501) on the Over-the-Counter bulletin board on a post-split basis at such time as declared by the NASDAQ stock market. Until such time, the shares of common stock will continue to be quoted on the Over-the-Counter bulletin board on a pre-split basis under CUSIP number 66737P 105. However, the shares will be quoted on a post-split basis on the AIM market beginning with the admission to trading on June 22, 2007.
     Registered stockholders of Northwest Biotherapeutics who hold existing physical stock certificates will receive a letter of transmittal from Northwest Biotherapeutics’ transfer agent, Mellon Investor Services, containing instructions on how to receive new share certificates. Stockholders whose certificates are held in “street name,” or on deposit with their brokerage firms, will need to take no further action.
About Northwest Biotherapeutics
Northwest Biotherapeutics is a biotechnology company focused on developing immunotherapy products that treat cancers more effectively than current treatments, without toxicity, on a cost-effective basis. The Company has two broad platform technologies: dendritic cell-based vaccines, and therapeutic antibodies. The Company’s three lead product candidates are:

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(NORTHWEST BIOTHERAPEUTICS LETTERHEAD)
    DCVax ® -Brain, a personalized dendritic cell vaccine for treatment of Glioblastoma multiforme, which has entered into a large Phase II pivotal clinical trial cleared by the FDA;
    DCVax ® -Prostate, a personalized dendritic cell vaccine for treatment of hormone independent non-metastatic prostate cancer, which is ready to enter a Phase III pivotal clinical trial cleared by the FDA; and
    Monoclonal antibodies to CXCR4, which are in late pre-clinical development for the treatment of multiple cancers.
For further information, please visit the company web site at www.nwbio.com .
Statements made in this news release that are not historical facts are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as “expects,” “believes,” “intends,” and similar expressions are intended to identify forward-looking statements. Actual results may differ materially from those projected in any forward-looking statement. Specifically, there are a number of important factors that could cause actual results to differ materially from those anticipated, such as the company’s ability to raise additional capital, risks related to the company’s ability to enroll patients in its Phase II clinical trial of DCVax ® -Brain and complete the trial on a timely basis, the uncertainty of the clinical trials process, the timely performance of third parties, and whether DCVax ® -Brain will demonstrate safety and efficacy and the timely performance of third parties. Additional information on these and other factors, which could affect the company’s results, is included in its Securities and Exchange Commission (“SEC”) filings. Finally, there may be other factors not mentioned above or included in the company’s SEC filings that may cause actual results to differ materially those projected in any forward-looking statement. You should not place undue reliance on any forward-looking statements. The company assumes no obligation to update any forward-looking statements as a result of new information, future events or developments, except as required by securities laws.

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