UNITED STATES
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):
December 1, 2017
Northwest Biotherapeutics, Inc.
(Exact name of registrant as specified in
its charter)
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Delaware
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001-35737
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94-3306718
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No.)
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4800 Montgomery Lane, Suite 800
Bethesda, Maryland 20814
(Address of Principal Executive Offices)
(240) 497-9024
(Registrant’s telephone number, including
area code)
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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¨
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Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
Growth Company
¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act.
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Item 1.01
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Entry into a Material Definitive Agreement.
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Financing
On December 1, 2017,
Northwest Biotherapeutics, Inc. (the “Company”) entered into Subscription Agreements (the “Subscription Agreements”)
with certain investors. Pursuant to the Subscription Agreements, the Company agreed to issue to certain investors in a registered
direct offering (the “Series A Offering”) an aggregate of 7,058,235 shares of the Company’s Series A Preferred
Stock, par value $0.001 per share, at a purchase price of $1.70 per share, and two-year Class D-1 Common Stock Purchase Warrants
(the “Class D-1 Warrants”) to purchase up to 70,582,351 shares of common stock at an exercise price of $0.22 per share.
Prior to this offering
of Series A Preferred Stock, the Company had not issued any shares of preferred stock although 40 million such shares are authorized
under the Company’s Articles of Incorporation (the “Articles”) in addition to the 450 million of shares of Common
Stock authorized under the Articles.
The Series A Preferred
Stock will be convertible into common stock, but only when common stock is available or after 6 months following issuance. When
sufficient shares of common stock are available for issuance upon conversion, each share of Series A Preferred Stock will be convertible
at the option of the holder, at any time, into a total of 10 shares of registered common stock, par value $0.001 per share, for
a total of 70,582,350 shares of common stock (the equivalent of a conversion price of $0.17 per share of common stock). Shares
of the Series A Preferred Stock will only receive dividends if the common stock receives dividends, and such dividends would be
in the same amount, on an as-converted basis. In case of a liquidation event, if the Series A Preferred Stock is still outstanding
at that time, each holder will, with respect to each Series A Preferred share owned by such holder, be entitled to a liquidation
preference of either the amount paid for the Series A Preferred share or the amount that that the holder of such Series A Preferred
share would have received if it had converted such share to common stock immediately prior to the liquidation event.
The Class D-1 Warrants
are not currently exercisable and will become exercisable only when shares of common stock are available for issuance upon exercise.
In connection with
the Series A Offering, the Company will enter into voting agreements with certain investors, in substantially the form filed as
Exhibit 10.2 hereto and incorporated herein by reference.
The Series A Offering
was made pursuant to the Company’s shelf registration statement on Form S-3, filed with the Securities and Exchange Commission
(“SEC”) on September 23, 2016, which became effective on October 18, 2016 (File No. 333-213777), as supplemented by
a prospectus supplement to be filed with the SEC.
The Company plans to
use the net proceeds from the Series A Offering for general corporate purposes, which may include working capital, capital expenditures,
research and development expenditures, regulatory affairs expenditures, clinical trial expenditures and acquisitions of new technologies
and investments.
The foregoing is only
a summary of the material terms of the documents related to the Series A Offering. The foregoing description of the Series A Preferred
Stock is qualified in its entirety by reference to the full text of the Certificate of Designations of Series A Preferred Stock
which is filed as Exhibit 3.1 to this Current Report on Form 8-K, which is incorporated herein by reference. The foregoing description
of the Class D-1 Warrants is qualified in its entirety by reference to the Form of Class D-1 Common Stock Purchase Warrant which
is filed as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference. The foregoing description
of the Subscription Agreements is qualified in its entirety by reference to the Form of Subscription Agreement which is filed as
Exhibit 10.3 to this Current Report on Form 8-K, which is incorporated herein by reference.
On December 4, 2017,
the Company issued a press release announcing the Series A Offering. A copy of the press release is filed as Exhibit 99.1 hereto
and is incorporated herein by reference.
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Item 3.02
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Unregistered Sales of Equity Securities.
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Concurrent with the
closing of the Series A Offering, the Company also exchanged previously issued warrants for the purchase of 6,686,342 shares of
our Common Stock, exercisable at $0.26 per share, for Class D-1 Warrants for the purchase of 11,792,482 shares of our common stock,
exercisable at $0.22 per share, and 120,590 shares of Series A Preferred Stock. Such securities are being exchanged and issued
to certain investors in consideration of approximately $2,000,000 in additional investments received by the Company in this offering
The new warrants and
Series A Preferred Stock described in this Item 3.02 will be issued pursuant to the exemption from the registration requirements
afforded by Section 3(a)(9) of the Securities Act.
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Item 3.03
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Material Modification to Rights of Security Holders.
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The discussion in Items
1.01 and 5.03 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 5.03.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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Certificate of Designations of Series
A Preferred Stock
The discussion in Item
1.01 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 5.03.
On December 1, 2017,
the Company filed the Certificate of Designations of Series A Preferred Stock (the “Series A Certificate of Designations”)
with the Secretary of State of the State of Delaware, setting forth the terms of the Series A Preferred Stock. The Series A Certificate
of Designations, effective as of December 1, 2017, created out of the authorized and unissued shares of preferred stock of the
Company, the Series A Preferred Stock, consisting of 15,000,000 shares, par value $0.001 per share and established the rights,
preferences and privileges thereof. A copy of the Series A Certificate of Designations is filed as Exhibit 3.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
The foregoing does
not purport to be a complete description of the Series A Certificate of Designations and is qualified in its entirety by reference
to the full text of the Series A Certificate of Designations.
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Item 9.01.
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Financial Statements and Exhibits.
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(d)
Exhibits.
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.
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NORTHWEST BIOTHERAPEUTICS, INC.
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Date: December 7, 2017
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By:
/s/ Linda Powers
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Name: Linda Powers
Title: Chief Executive Officer
and Chairman
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Exhibit 3.1
CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
NORTHWEST BIOTHERAPEUTICS, INC.
Northwest
Biotherapeutics, Inc. (the “
Company
”), a corporation formed and existing under the Delaware General Corporation
Law (the “
DGCL
”), does hereby determine and certify that, pursuant to Section 151 of the DGCL and authority
conferred upon its Board of Directors (the “
Board of Directors
”) by the Company
’
s
Certificate of Incorporation (as amended, the “
Certificate of Incorporation
”), pursuant to Section 141(f) of
the DGCL, the Board of Directors hereby adopt the following resolutions by unanimous written consent in lieu of a meeting:
WHEREAS, the Certificate of Incorporation authorizes
40,000,000 shares of preferred stock, par value $0.001 per share (the “
Preferred Stock
”); and
WHEREAS, the Certificate of Incorporation authorizes
the Board of Directors to provide, by resolution from time to time and by filing a certificate of designations pursuant to the
DGCL, for the issuance of the shares of Preferred Stock in one or more series;
NOW, THEREFORE, BE IT RESOLVED, that the Board
of Directors hereby approves and adopts the designations set forth below (this “
Certificate of Designations
”)
and a series of Preferred Stock with the following powers, designations, preferences and rights and the following qualifications,
limitations and restrictions is hereby authorized and established:
ARTICLE 1
DESIGNATION
Section
1.1 There is hereby created out of the authorized and unissued
shares of Preferred Stock of the Company a series of preferred stock designated “Series A Convertible Preferred Stock”
(the “
Series A Preferred Stock
”), consisting of 15,000,000 shares, par value $0.001 per share (each, a “
Series
A Preferred Share
”). Each Series A Preferred Share shall rank equally in all respects and shall be subject to the following
provisions of this Certificate of Designations. Series A Preferred Shares which have been converted, redeemed, repurchased or otherwise
acquired by the Company shall be retired and, following the filing of any certificate required by the DGCL, will have the status
of authorized and unissued shares of the Company
’
s Preferred
Stock, without designation as to series, until such shares are once more designated by the Board of Directors as part of a particular
series of preferred stock.
ARTICLE 2
RANK AND PREFERENCE
Section 2.1 The
Series A Preferred Stock shall, with respect to rights upon an acquisition of the Company, sale of all or substantially all assets
of the Company, other business combination or liquidation, dissolution or winding up of the affairs of the Company (collectively,
a “Liquidation Event”) rank senior and prior to the common stock, par value $0.001 per share, of the Company (the “Common
Stock”). In the event of a Liquidation Event, each Holder shall, with respect to each Series A Preferred Share owned by such
Holder, be entitled to receive, out of funds of the Company legally available therefor, before any payment or distribution of any
assets of the Company shall be made or set apart for holders of the Common Stock, an amount per Series A Preferred Share equal
to, at the election of the relevant such Holder, either (a) $1.70 per Series A Preferred Share or (b) the amount such Holder would
have received had such Holder, immediately prior to such Liquidation Event, converted such Series A Preferred Share into shares
of Common Stock as set forth herein.
ARTICLE 3
VOTING RIGHTS AND TRANSFERABILITY
Section
3.1 On any matter presented to the stockholders of the Company
for their action at any meeting of stockholders of the Company (or by written consent of stockholders in lieu of a meeting), each
Holder shall be entitled to cast the number of votes equal to 10 votes per Series A Preferred Share held by such Holder. Notwithstanding
the foregoing, Holders of Series A Preferred Stock shall not be entitled to vote shares of such stock on any matter for which the
holders of Common Stock are then entitled to vote as a separate class pursuant to Section 242(b)(2) of the DGCL (including any
amendment to the Certificate of Incorporation to increase or decrease the authorized number of shares of Common Stock unless the
class vote on such matter has been eliminated pursuant to the Certificate of Incorporation). Except as otherwise required by law
or other provisions of the Certificate of Incorporation or this Certificate of Designations, Holders shall vote together with the
holders of Common Stock as a single class (together with any other capital stock entitled to vote thereon) and shall be entitled
to notice of any stockholders
’
meeting in accordance with
the bylaws of the Company as in effect from time to time.
Section
3.2 On or before the Voting Period End Date (as defined below),
the Series A Preferred Stock shall not be directly or indirectly assignable or transferable by any Holder thereof, and no Holder
of Series A Preferred Stock shall at any time, directly or indirectly, sell, assign, transfer or otherwise dispose of any shares
of Series A Preferred Stock or any economic or voting interests or rights associated therewith, except as specifically authorized
by the Board of Directors in its sole discretion. Any purported transfer or assignment in violation of the foregoing shall be void
ab initio and given no effect. “
Voting Period End Date
” means the earlier of (i) the date on which the holders
of the Company
’
s common stock approve, at a shareholder meeting
of the Company, an increase in the maximum number of shares authorized for issuance, or (ii) June 1, 2018.
ARTICLE 4
CONVERSION
Section 4.1.
Shares
of Common Stock To Be Delivered Upon Conversion
. Each Series A Preferred Share shall be convertible into ten (10) shares of
Common Stock as provided in this Article 4.
Section 4.2
Optional
Conversion
. From and after the date on which the Company has sufficient shares of Common Stock authorized and available for
issuance to satisfy its obligations to deliver Common Stock upon conversion of some or all of the Series A Preferred Stock, but
in any event not later than June 1, 2018 (such date, the “
Convertibility Date
”), each Holder shall be entitled,
subject to such availability of Common Stock, to convert some or all of their Series A Preferred Stock, at any time and from time
to time into a number of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in
this Article 4. Upon such conversion, the Series A Preferred Shares so converted shall no longer be deemed to be outstanding,
and all rights of the Holder with respect to such Series A Preferred Shares shall immediately terminate, except the right to receive
the shares of Common Stock and any other amounts payable pursuant to this Certificate of Designations.
Section
4.3.
Mandatory Conversion
. From and after the Convertibility
Date, the Company shall have the right, at any time and from time to time, in its sole discretion, to cause some or all of such
Series A Preferred Shares to be automatically converted (without any further action by the Holder(s) and whether or not the Series
A Preferred Shares (in the case of uncertificated shares) or the certificates representing the Series A Preferred Shares are surrendered),
into a number of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Article
4. The Company shall exercise this right by delivering at least three (3) days
’
prior
written notice thereof to the applicable Holder of Series A Preferred Shares. From and after such conversions (the dates and times
of such conversion, the applicable “
Mandatory Conversion Date
”), the Series A Preferred Shares so converted
shall no longer be deemed to be outstanding, and all rights of the Holder with respect to such Series A Preferred Shares shall
immediately terminate, except the right to receive the shares of Common Stock and any other amounts payable pursuant to this Certificate
of Designations.
Section
4.4.
Beneficial Ownership Limitation
. Notwithstanding anything
in this Certificate of Designations to the contrary, the Company shall not effect any conversion of the Series A Preferred Stock,
and a Holder shall not have the right to convert any portion of the Series A Preferred Stock, to the extent that, after giving
effect to an attempted conversion set forth on an applicable notice of conversion, such Holder (together with such Holder
’
s
Affiliates, and any other Person whose beneficial ownership of Common Stock would be aggregated with the Holder
’
s
for purposes of Section 13(d) of the Exchange Act and the applicable regulations of the Commission, including any “group”
of which the Holder is a member) would beneficially own a number of shares of Common Stock in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned
by such Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series A Preferred
Stock subject to the applicable notice of conversion with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted Series A Preferred Stock
beneficially owned by such Holder or any of its Affiliates, and (B) exercise or conversion of the unexercised or unconverted portion
of any other securities of the Company (including any warrants) beneficially owned by such Holder or any of its Affiliates that
are subject to a limitation on conversion or exercise similar to the limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this Section 4.4, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the applicable regulations of the Commission. In addition, for purposes hereof, “group” has the meaning set
forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission. For purposes of this Section 4.4,
in determining the number of outstanding shares of Common Stock, absent actual knowledge of such Holder to the contrary, a Holder
may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Company
’
s
most recent periodic or annual filing with the Commission, as the case may be, (B) a more recent public announcement by the Company
that is filed with the Commission, or (C) a more recent notice by the Company or the Company
’
s
transfer agent to the Holder setting forth the number of shares of Common Stock then outstanding. Upon the written request of a
Holder, the Company shall, within three Trading Days thereof, confirm in writing to such Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to
any actual conversion or exercise of securities of the Company, including shares of Series A Preferred Stock, by such Holder or
its Affiliates since the date as of which such number of outstanding shares of Common Stock was last publicly reported or confirmed
to the Holder. The initial “
Beneficial Ownership Limitation
” shall be 9.9% (after giving effect to the issuance
of shares of Common Stock pursuant to such notice of conversion (to the extent permitted pursuant to this Section 4.4.)) The Company
shall be entitled to rely on representations made to it by the Holder in any notice of conversion regarding its Beneficial Ownership
Limitation.
Section
4.5.
Mechanics of Conversion
. In order to convert Series A Preferred
Shares pursuant to Section 4.2, the converting Holder must surrender the applicable Series A Preferred Shares (in the case of uncertificated
shares) or the certificates representing such Series A Preferred Shares at the office of the Company
’
s
transfer agent for the Series A Preferred Stock (or at the principal office of the Company, if the Company serves as its own transfer
agent), together with (i) written notice that such Holder elects to convert all or part of such Series A Preferred Shares as specified
in such notice and (ii) a written instrument or instructions of transfer or other documents and endorsements reasonably acceptable
to the transfer agent or the Company, as applicable. The date the transfer agent or the Company, as applicable, receives such Series
A Preferred Shares or certificates, together with such notice and any other documents and amounts required to be paid by the Holder
pursuant to this Section 4.5, will be the date of conversion.
Section 4.6.
Transfer
Taxes
. Issuances of shares of Common Stock upon conversion of the Series A Preferred Shares shall be made without charge to
the Holder for any issuance or transfer tax or other incidental expense in respect of the issuance thereof;
provided, however
,
that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance
or delivery of shares of Common Stock in a name other than that of the converting Holder, and no such issuance or delivery need
be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or
has established, to the reasonable satisfaction of the Company, that such tax has been, or will timely be, paid.
Section 4.7.
Adjustments
for Subsequent Events
. From and after the date of this Certificate of Designations, adjustments shall be made from time to
time (but not less than the par value of the Common Stock) as follows:
(a)
Stock
Splits, Subdivisions, Reclassifications or Combinations
. If the Company shall (i) subdivide (including by stock dividend) or
reclassify the outstanding shares of Common Stock into a greater number of shares, or (ii) combine or reclassify the outstanding
Common Stock into a smaller number of shares, the number of shares of Common Stock issuable upon conversion of the Series A Preferred
Stock and the number of votes held by each Series A Preferred Share held by the Holders will be correspondingly adjusted.
(b)
Other
Distributions
. If the Company fixes a record date for the making of a dividend or distribution to all holders of shares of
its Common Stock (i) of cash, (ii) of shares of any class of the Company or of any Person, other than shares of the Company
’
s
Common Stock, or (iii) of evidences of indebtedness of the Company or any subsidiary, (iv) of assets or (v) of rights or warrants
in respect of any of the foregoing, in each such case the Series A Preferred Stock shall be entitled to receive such dividend of
distribution on an as-converted basis.
(c)
Successive
Adjustments
. Successive adjustments in respect of the Series A Preferred Shares shall be made pursuant to this Section 4.7,
without duplication, whenever any event specified in Section 4.7(a) hereof shall occur.
(d)
Rounding
of Calculations; Minimum Adjustments
. All calculations of any share adjustment amount under this Section 4.7 shall be made
to the nearest one-thousandth (1/1,000th). No adjustment is required if the amount of such adjustment would be less than 0.01 of
a share;
provided, however
, that any adjustments which by reason of this Section 4.7(d) are not required to be made will
be carried forward and given effect in any subsequent adjustment.
ARTICLE 5
DEFINITIONS
Unless the context otherwise requires, when
used herein the following terms shall have the meaning indicated.
“
Affiliate
” means any person
or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to a Holder,
any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Holder will
be deemed to be an Affiliate of such Holder.
“
Business Day
” means a day
except a Saturday, a Sunday or other day on which commercial banks in the City of New York are authorized or required by applicable
law to be closed.
“
Commission
” means the Securities
and Exchange Commission.
“
Holders
” means the holders
of outstanding Series A Preferred Shares as they appear in the records of the Company.
“
Person
” means an individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, or any
successor statute, and the rules and regulations promulgated thereunder).
“
Trading Day
” means a day
on which the Common Stock is traded for any period on the principal securities exchange or if the Common Stock is not traded on
a principal securities exchange, on a day that the Common Stock is traded on another securities market on which the Common Stock
is then being traded or if the Common Stock is not then traded, Trading Day shall mean a Business Day.
ARTICLE 6
MISCELLANEOUS
Section 6.1.
Lost,
Stolen, Mutilated or Destroyed Share Certificates
. If a stock certificate representing Series A Preferred Shares is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnification by the Holder or otherwise as it may reasonably impose
(which shall, in the case of a mutilated stock certificate, include the surrender thereof), issue a replacement stock certificate
of the same denomination and tenor as the stock certificate so lost, stolen, mutilated or destroyed.
Section 6.2.
Notices
.
All notices or communications in respect of Series A Preferred Shares shall be in writing, shall be effective upon delivery, and
shall be delivered by (i) registered or certified mail, return receipt requested, postage prepaid, (ii) reputable nationwide overnight
courier service guaranteeing next business day delivery, (iii) personal delivery, or (iv) facsimile or electronic mail, with written
confirmation of receipt.
Section 6.3.
No
Other Rights
. The Series A Preferred Shares shall not have any rights, preferences, privileges or voting powers or relative,
participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as expressly
set forth herein or in the Certificate of Incorporation or as required by applicable law or regulation.
Section 6.4.
Headings
.
The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
Section 6.5.
Amendments
.
So long as any Series A Preferred Shares are outstanding, in addition to any other vote required by law, the affirmative vote of
the holders of a 67% in voting power of the Series A Preferred Shares shall be required for the Corporation to effect any amendment,
alteration or repeal of any provision of the Certificate of Incorporation (including this Certificate of Designations with respect
to the Series A Preferred Stock) that would alter or change the rights, powers or preferences of the Series A Preferred Stock so
as to affect them adversely. Subject to the preceding sentence, but otherwise notwithstanding any provision in this Certificate
of Designations to the contrary, any provision contained herein and any right of the holders of the Series A Preferred Shares granted
hereunder may be waived as to all shares of Series A Preferred Stock (and the holders thereof) upon the written consent of the
Company and the holders of 67% in voting power of the Series A Preferred Shares. Further, in addition to the foregoing, (a) any
provision contained in this Certificate of Designations and any right provided hereunder may be waived by a particular party who
would benefit from the provision to be waived or who is not the party restricted by the provision to be waived with respect to
itself only, and (b) the limitations provided in Section 4.4 may be waived by mutual agreement of the Company and the Holder.
Section 6.6.
Effectiveness
.
This Certificate of Designations shall become effective upon filing with the Secretary of State of the State of Delaware.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Companyhas caused this
Certificate of Designations to be duly executed and acknowledged by the undersigned, thereunto duly authorized, this 1st day of
December, 2017.
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NORTHWEST BIOTHERAPEUTICS, INC.
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By:
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/s/ Leslie J. Goldman
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Name: Leslie J. Goldman
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Title: Senior Vice President
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Exhibit 10.1
NORTHWEST BIOTHERAPEUTICS, INC.
CLASS D-1 WARRANTS
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No. WD1-
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____________
, 2017
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This
Certifies That
, for value received, ____________________________ or its assigns (the “
Holder
”),
is entitled to subscribe for and purchase from
Northwest Biotherapeutics, Inc.
,
a Delaware corporation, with its principal office in Bethesda, Maryland (the “
Company
”), such number
of Exercise Shares as provided herein at the Exercise Price as provided herein. This Warrant is being issued pursuant to the terms
of that certain Subscription Agreement, dated __________, 2017, by and among the Company and Holder (the
“
Agreement
”).
1.
Definitions.
Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement, as applicable. As
used herein, the following terms shall have the following respective meanings:
(a)
“
Business
Day
” means a day except a Saturday, a Sunday or other day on which commercial banks in the City of New York are authorized
or required by applicable law to be closed.
(b)
“
Common
Stock
” shall mean the common stock of the Company, par value $0.001 per share.
(c)
“
Exercisability
Date
” shall mean the date the Company provides written notice to the Holder that the Company’s certificate
of incorporation has been amended subsequent to the date hereof to increase the number of authorized shares of Common Stock thereunder
and that all other necessary corporate action has been taken to authorize and reserve for issuance the Exercise Shares; provided
that the Company shall provide such written notice within five Business Days after such amendment has been effected and all other
necessary corporate action has been taken.
(d)
“
Exercise
Period
” shall mean the period commencing on the Exercisability Date and ending two (2) years after the Exercisability
Date.
(e)
“
Exercise
Price
” of this Warrant shall be Twenty-Two Cents ($0.22) per share.
(f)
“Exercise
Share”
shall mean each of the fully paid and non-assessable shares of Common Stock for which this Warrant is exercisable
at the Exercise Price. The number of Exercise Shares initially shall be ____________________ (_____________).
2.
Exercise
of Warrant
.
2.1
Vesting
and Exercise.
This Warrant will be fully vested upon issuance, but will not be exercisable prior to the Exercisability Date.
Subject to the preceding limitation on exercise and the conditions set forth in this Warrant, the rights represented by this Warrant
may be exercised in whole or in part at any time or times prior to the expiration of the Exercise Period, by delivery of the following
to the Company at its address set forth above (or at such other address as it may designate by notice in writing to the Holder):
(a)
An
executed Notice of Exercise in the form attached hereto;
(b)
Payment
of the Exercise Price by wire transfer of immediately available funds, subject to Paragraph 2.2 below; and
(c)
This
Warrant.
Upon the exercise of the
rights represented by this Warrant, a certificate or certificates for the Exercise Shares so purchased, registered in the name
of the Holder or Holder’s designee(s), shall be issued and delivered to the Holder within a reasonable time after the rights
represented by this Warrant shall have been so exercised (but in no event less than three (3) Trading Days following the date of
exercise). In the event that this Warrant is being exercised for less than all of the then-current number of Exercise Shares purchasable
hereunder, the Company shall, concurrently with the issuance by the Company of the number of Exercise Shares for which this Warrant
is then being exercised, issue a new Warrant exercisable for the remaining number of Exercise Shares purchasable hereunder.
The person in whose name
any certificate or certificates for Exercise Shares are to be issued upon exercise of this Warrant shall be deemed to have become
the holder of record of such shares on the date on which this Warrant was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or certificates, except that, if the date of such surrender and payment
is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such
shares at the close of business on the next succeeding date on which the stock transfer books are open.
2.2
Net
(Cashless) Exercise
. If and only if, and to the extent that, there is no effective registration statement registering the issuance
Common Stock of the Company upon exercise of this Warrant at the time this Warrant is exercised, and if the fair market value of
one Exercise Share is greater than the Exercise Price (at the date of calculation as set forth below), then in lieu of exercising
this Warrant by payment of cash, the Holder may elect to receive shares equal to the value (as determined below) of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the properly
endorsed Notice of Exercise in which event the Company shall issue to the Holder a number of Exercise Shares computed using the
following formula:
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Where X =
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the number of Exercise Shares to be issued to the Holder
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Y =
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the number of Exercise Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, that portion of the Warrant being canceled (at the date of such calculation)
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A =
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the average of the VWAP of the Common Stock for the ten consecutive Trading Days ending on the Trading Day immediately prior to the date of exercise of the Warrants
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B =
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Exercise Price (as adjusted to the date of such calculation)
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“
Trading Day
”
means a day on which (i) trading in Common Stock generally occurs on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded, which may be OTCQB or OTCQX (a “
Trading Market
”)
and (ii) a last reported sale price for our common stock is available on such securities exchange or market. If the Common Stock
is not so listed or traded, “Trading Day” means a “Business Day.”
“
VWAP
”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding
date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if such volume weighted average price is unavailable
from Bloomberg L.P. or its successor, the closing sales price of the Common Stock on the Trading Market, or (c) in all other cases,
the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers
of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of
which shall be paid by the Company.
2.3
Securities
for Which Warrant is Exercisable.
Subject to the limitations on exercise and the conditions set forth in this Warrant, this
Warrant shall be exercisable, in whole or in part, and from time to time, for Common Stock of the Company.
3.
Covenants
of the Company
.
3.1
Covenants
as to Exercise Shares.
The Company covenants and agrees that all Exercise Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued and outstanding, fully paid and non-assessable, and free
from all taxes, liens and charges with respect to the issuance thereof.
3.2
No
Impairment.
The Holder’s rights, preferences and privileges granted under and/or in connection with this Warrant may
not be amended, modified or waived without the Holder’s prior written consent.
4.
Representations of Holder
.
4.1
Acquisition
of Securities for Personal Account.
The Holder represents and warrants that the securities it is acquiring on the date hereof
are being acquired solely for its account for investment and not with a view to or for sale or distribution of such securities,
or any part thereof, except in compliance with applicable federal and state securities laws. The Holder also represents and warrants
that all of the legal and beneficial interests in the securities which the Holder is acquiring are being acquired for, and will
be held for, its account only.
4.2
Accredited
Investor Status.
The Holder is an
“
accredited investor
”
as defined in Regulation D promulgated under
the Act.
5.
Adjustment
of Exercise Price and Exercise Shares
.
5.1
Changes
in Securities.
In the event of changes in the Common Stock by reason of stock dividends, splits, recapitalizations, reclassifications,
combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the aggregate number of Exercise
Shares then available under the Warrant and the Exercise Price thereof shall be correspondingly adjusted to give the Holder of
the Warrant, on exercise for the same aggregate Exercise Price, the same shares as the Holder would have owned had the Warrant
been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment.
The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
Notwithstanding anything in this Warrant to the contrary, no adjustment will be made to the Exercise Price of this Warrant, such
that the Exercise Price would be less than the then current par value of outstanding shares of Common Stock.
6.
Fractional
Shares
.
No fractional shares shall be issued
upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including fractions)
to be issued upon exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in
the issuance of any fractional share. If, after aggregation, the exercise would result in the issuance of a fractional share,
the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash
equal to the product resulting from multiplying the then current fair market value of one Exercise Share by such fraction.
7.
Transfer
of Warrant
.
a)
Transferability
.
On or before the Voting Period End Date (as defined below), the Class D-1 Warrants shall not be directly or indirectly assignable
or transferable by the Holder, and the Holder shall not at any time, directly or indirectly, sell, assign, transfer or otherwise
dispose of, loan or pledge any Class D-1 Warrants or any economic or voting interests or rights associated therewith, except as
specifically authorized by the Board of Directors in its sole discretion. Any purported transfer or assignment in violation of
the foregoing shall be void ab initio and given no effect. After the Voting Period End Date, this Warrant and all rights hereunder
are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder
or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. “
Voting
Period End Date
” means the 80th day after the conclusion of the Company’s 2017 annual meeting of stockholders.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly
be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder
shall surrender this Warrant to the Company within three (3) Business Days of the date on which the Holder delivers an assignment
form to the Company assigning this Warrant full.
The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Exercise Shares without having a new Warrant issued.
b)
New
Warrants
. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 7(a), as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants
to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the date
of the original issuance of the Warrant and shall be identical with this Warrant except as to the number of Exercise Shares issuable
pursuant thereto.
c)
Warrant
Register
. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “
Warrant
Register
”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and
for all other purposes, absent actual notice to the contrary.
8.
Lost,
Stolen, Mutilated or Destroyed Warrant
.
If
this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnification by the Holder or otherwise
as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a replacement
Warrant of the same denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Upon the issuance of any such
replacement Warrant, the original Warrant shall become null and void without the necessity of any further action on the part of
the Company.
9.
Amendment.
Any term of this Warrant may be amended or waived only with the advance written consent
of the Company and the Holder.
10.
Notices,
etc
.
All notices required or permitted hereunder
shall be in writing and shall be effective upon delivery to the recipient. All communications shall be sent to the Company and
to the Holder at the addresses listed on the signature page hereof or at such other address as the Company or Holder may designate
by written notice to the other parties hereto.
11.
Governing
Law
.
This Warrant and all rights, obligations
and liabilities hereunder shall be governed by and construed under the laws of the State of Delaware without giving effect to
conflicts of laws principles.
[Signature Page Follows]
In Witness
Whereof
, the Company has caused this Warrant to be executed by its duly authorized officer as of the date first written
above.
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Northwest Biotherapeutics, Inc.
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By:
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Name:
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/s/ Linda Powers
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Title:
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President and CEO
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Address:
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4800 Montgomery Lane
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Suite 800
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Bethesda, MD 20814
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ACKNOWLEDGED AND AGREED
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By:
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Name:
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Signature
Page to Warrant
NOTICE OF EXERCISE
TO: Northwest Biotherapeutics, Inc.
(1)
The
undersigned hereby elects to purchase ________ shares of Common Stock (the “
Exercise Shares
”) of
Northwest
Biotherapeutics, Inc.
(the “
Company
”) pursuant to the terms of the attached Warrant, and tenders
herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
¨
(1)
The undersigned hereby
elects to purchase ________ shares of Common Stock (the “
Exercise Shares
”) of
Northwest
Biotherapeutics, Inc.
(the “
Company
”) pursuant to the terms of the net exercise provisions
set forth in Section 2.2 of the attached Warrant, and shall tender payment of all applicable transfer taxes, if any.
¨
(2)
Please
issue a certificate or certificates representing said Exercise Shares in the name of the undersigned or in such other name as is
specified below:
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(Date)
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(Signature)
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(Print name)
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ASSIGNMENT FORM
(To assign the foregoing Warrant,
execute this form and supply required information. Do not use this form to purchase shares.)
For
Value Received
, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
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Name:
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(Please Print)
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Address:
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(Please Print)
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Holder’s
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Signature:
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Holder’s
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Address:
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NOTE
: The signature to this Assignment Form must correspond
with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing
Warrant.
Exhibit 10.2
VOTING AGREEMENT
This Voting Agreement (the “Agreement”)
is effective as of a
____________
, 2017, and is by and between Northwest Biotherapeutics, Inc., a Delaware corporation (the
“Company”) and
____________
, a
____________
(the “Investor”).
RECITALS
WHEREAS, the Company has established a class
of Series A Preferred Stock (the “
Series A Preferred
”) and the terms and conditions of such Series A Preferred
are set forth in a Certificate of Designations filed with the Delaware Secretary of State on or before the date of this Agreement,
a filed and certified copy of which has been provided to the Investor (the “
Certificate of Designations
”);
WHEREAS, concurrently herewith, the Investor
is entering into a Subscription Agreement (the “
Subscription Agreement
”) to purchase Series A Preferred and
certain warrants to acquire shares of the Common Stock of the Company from the Company (the “
Series D-1 Warrants
”
and, together with the Covered Shares and any other securities convertible into or exercisable for Common Stock, the “
Equity
Securities
”); and
WHEREAS, the Investor is entering into this
Agreement in accordance with the terms and conditions of the Subscription Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent and the Investor hereby
agree as follows:
1.
Agreement
to Vote
. During the Term of this Agreement, the Investor agrees that for purposes of any shareholder meeting or action of any
kind, (a) the Investor will cause the Covered Shares (as defined in Section 6(e) hereof) to be counted as present for purposes
of establishing a quorum, and will respond to each request by the Company for written consent, if any, and (b) the Investor
will vote (or consent), or cause to be voted (or cause consent to be granted), all Covered Shares in accordance with the recommendations
of the Company’s Board of Directors with respect to any amendment to the Company’s certificate of incorporation as
the Board of Directors may deem necessary or appropriate to increase the Company’s authorized common stock and/or preferred
stock.
2.
Grant
of Proxy; Appointment of Proxy
.
(a) The Investor hereby grants to, and appoints,
the Company, the executive officers of the Company, and any other designee of the Company, such Investor’s irrevocable (until
the termination date) proxy and attorney-in-fact (with full power of substitution) to vote the Covered Shares as provided in Section 1.
The Investor intends this proxy to be unconditional and irrevocable (until the termination date) and coupled with an interest,
and will take such further action and/or execute such other instruments as may be necessary to effectuate the intent of this proxy,
and hereby represents to the Company that no other proxy has been or will be given during the term of this Agreement. Notwithstanding
the foregoing, the Investor will not be required to take such action or execute such documents, or vote as required pursuant to
Section 1 hereof, at any time when the Company is in breach in any material respect of any covenant of the Company forth in Sections
I.B. (Use of Proceeds), I.D. (Equity Compensation) or I.G. (Registration) of the Subscription Agreement.
(b) The proxy granted herein shall automatically
expire upon the expiration or termination of this Agreement.
3.
Term
and Termination
. This Agreement shall terminate at the end of the Voting Period End Date (as such term is defined in the Certificate
of Designations).
4.
Representations
and Warranties of the Investor
. The Investor hereby represents and warrants to the Company as follows:
(a)
The
Investor is the record owner and beneficial owner of the Covered Shares, free and clear of encumbrances. The Investor has sole
voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, with respect
to all of the Covered Shares. The Covered Shares are not subject and during the term of this Agreement will not be subject to any
voting trust agreement, stock loan or other contract, promise, arrangement, obligation or commitment which may restrict or otherwise
affect the voting of the Covered Shares. The Investor has not appointed or granted any proxy or power of attorney with respect
to any Covered Shares to any party other than the Company as set forth in this Agreement. Execution, delivery and performance of
this Agreement by the Investor will not conflict with or result in any breach or violation of any contract, promise, arrangement,
obligation or commitment.
(b)
The
Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all
requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery
and performance of this Agreement by the Investor have been duly and validly authorized and no other actions or proceedings are
necessary to authorize the execution, delivery and performance of this Agreement by the Investor. Upon execution, this Agreement
will constitute a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity
or at law).
5.
Representations,
Warranties and Covenants of the Company
. The Company hereby represents, warrants and covenants to the Investor that: (a) the
Company is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all
requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) the execution,
delivery and performance of this Agreement by the Company have been duly and validly authorized and no other actions or proceedings
are necessary to authorize the execution, delivery and performance of this Agreement by the Company; (c) upon execution, this
Agreement will constitute a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except
as enforcement may be limited by applicable laws relating to bankruptcy or insolvency, or similar laws affecting creditors’
rights.
6.
Investor Covenants
. The Investor hereby covenants and agrees
as follows for the period from the date hereof through and including the Termination Date:
(a) The
Investor will not directly or indirectly enter into, cause, allow or accept any voting trust or other trust agreement, stock loan,
security interest, encumbrance, or other contract, promise, arrangement or commitment which may restrict, control or otherwise
affect the voting of the Covered Shares during the Term of this Agreement.
(b) The
Investor will not take any action that would make any representation or warranty of such Investor untrue or incorrect, or directly
or indirectly have the effect of preventing or disabling such Investor from performing its obligations under this Agreement.
(c)
The
Investor will not at any time directly or indirectly take, participate in, authorize, allow, accept or support any action or opposition
to action that may conflict with any shareholder vote or consent, or any action or matter approved by any shareholder vote or consent,
pursuant to this Agreement or to which this Agreement relates.
(d)
The
Investor will not sell (constructively or otherwise), transfer, pledge, hypothecate, grant, encumber, assign or otherwise dispose
of (collectively, “
Transfer
”), or enter into any contract, option, agreement or other arrangement or understanding
with respect to the Transfer of any of the Equity Securities or beneficial ownership or voting power thereof or therein (including
by operation of law), unless the transferee or purchaser enters into this Voting Agreement. Any Transfer in violation of this provision
shall be void. The Investor authorizes the Company to notify the Company’s transfer agent that there is a stop transfer order
with respect to all of the Equity Securities and that this Agreement places limits on the voting of the Equity Securities.
(e)
For
purposes of this Agreement, the “Covered Shares” shall include all shares of Common Stock and Series A Preferred owned
of record or beneficially by the Investor, or as to which the Investor otherwise has the power to vote or direct the voting of
or has a voting interest in, as of the date of this Agreement or as to which the Investor acquires such ownership or beneficial
or other interest during the term of this Agreement.
7.
Further
Assurances
. The Investor shall take such further action as may be reasonably requested by the Company, from time to time, to
consummate and make effective the performance of this Agreement in accordance with its terms.
8.
Miscellaneous.
(a)
Amendments
.
This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by
an instrument in writing signed by both parties.
(b)
No
Waiver
. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such
right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they
would otherwise have hereunder. Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written
instrument executed and delivered by such party.
(c)
Notices
.
All notices and other communications hereunder shall be effective upon delivery, shall be in writing and shall be deemed duly given
if delivered (a) personally, or by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, (b) by
next-day courier service by a nationally recognized courier company or (c) by registered or certified mail, return receipt
requested, postage prepaid.
(d)
Entire
Agreement
. This Agreement, the Subscription Agreement and the Certificate of Designations constitute the entire agreement between
the parties relating to the subject matter hereof, and supersede all prior written agreements, arrangements, communications and
understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties.
(e)
Assignment;
Successors
. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other
party, and any such assignment without such prior written consent shall be null and void. This Agreement will be binding upon and
inure to the benefit of the parties and their successors and assigns.
(f)
Specific
Performance
. The parties agree that irreparable damage would occur in the event that any provisions of this Agreement were
not performed in accordance with their terms or were otherwise breached, and that money damages would not be adequate. Accordingly,
the Company will be entitled to specific performance of this Agreement and the obligations of the Investor hereunder, including
injunctions to prevent breaches of this Agreement and to enforce the terms and provisions of this Agreement.
(g)
Governing
Law and Dispute Resolution
. This Agreement and all disputes or controversies arising out of or relating to this Agreement or
the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of
Delaware, without regard to choice of law provisions, and in the courts located in the State of Delaware. Each party waives all
right to a trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or the transactions
contemplated hereby.
(h)
Severability
.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any provision
in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision had never been contained herein.
(i)
Counterparts
.
This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall
become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.
(j)
Facsimile
or .pdf Signature
. This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall
constitute an original for all purposes.
(k)
No
Presumption Against Drafting Party
. Each of the parties to this Agreement has been represented by counsel in connection with
this Agreement and the transactions contemplated herein. The interpretation and enforcement of this Agreement shall not be affected
by any presumption against the drafting party, or any similar rule or principle.
[The remainder of this page is intentionally
left blank.]
IN WITNESS WHEREOF, the Investor and the Company
have executed this Agreement as of the date first written above.
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[INVESTOR]
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Name:
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Title:
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NORTHWEST BIOTHERAPEUTICS, INC.
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Name:
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Title:
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[Signature Page to Voting Agreement]
Exhibit 10.3
NORTHWEST BIOTHERAPEUTICS, INC.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT
(this “
Agreement
”), is made as of ____________, 2017, by and among Northwest Biotherapeutics, Inc., a Delaware
corporation (the “
Company
”), and ____________, the purchaser identified on the signature pages hereto (the “
Purchaser
”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant to an effective S-3 registration statement under the Securities
Act of 1933, as amended (the “
Securities Act
”), the Company desires to issue and sell to the Purchaser, and
the Purchaser, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
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A.
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The Purchaser hereby agrees to purchase at the Closing (as defined below) and the Company agrees,
subject to the accuracy of the representations of the Purchaser set forth in Part III, to sell and issue to the Purchaser at the
Closing the number of Offered Securities set forth below at a purchase price of $1.70 per share for 58,824 shares of Series A Convertible
Preferred Stock (as set forth below in column A below, each Series A Convertible Preferred share convertible in accordance with
the Certificate of Designations into 10 common shares priced at 17 cents per share for 588,235 shares as calculated in Column B
below, and a two year Class D-1 Warrant with a number of exercise shares equal to the number of converted common shares (588,235
shares) as calculated in Column C below, with an exercise price of 22 cents per share ($0.22). The aggregate subscription price
to be paid by the Purchaser in respect of all the Offered Securities to be purchased pursuant to this Agreement is One Hundred
Thousand Dollars ($100,000) (the “
Aggregate Purchase Price
”) as indicated in Column D below. The Series A Preferred
Shares, the shares of Common Stock and the Warrants to be issued to the Purchaser upon the purchase of the Series A Preferred Shares
to be issued at the closing pursuant to this Agreement are collectively referred to as the “Offered Securities.”
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(A)
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(B)
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(C)
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(D)
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Name and Address
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Number of
Shares of Series
A Convertible
Preferred Shares
Being Issued
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Number of Common
Shares Upon Conversion
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Number Of Class D-1 Warrants
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Subscription Price For Series A Preferred Shares and Class D-1 Warrants
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(Equal to Column (A) multiplied by 10)
|
(Equal to Column (A) multiplied by 10)
|
(Equal to
Column (A) multiplied
by $1.70)
|
|
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58,824
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588,235
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588,235
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$100,000
|
|
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B.
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The delivery to the Purchaser of the Offered Securities
being sold pursuant to this Agreement shall, subject to satisfaction of the Company’s obligations to sell the Offered Securities
pursuant to the Agreement as set forth herein and payment in full by the Purchaser of the Aggregate Purchase Price, take place
on such date as the Company and Purchaser may agree (such date, the “
Closing
”). At the Closing, the Company
shall deliver to each Purchaser (i) the Certificate of Designations with respect to the Series A Convertible Preferred Shares,
containing the specific terms and procedures for converting to Common Shares, and (ii) certificates representing the Class D-1
Warrants being purchased by such Purchaser at such Closing, against payment of the purchase price therefor by wire transfer to
a bank account designated by the Company.
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C.
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The obligations of the Company to issue and sell Offered
Securities to the Purchaser at the Closing are subject to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived: (i) no legal action, suit or proceeding shall be pending that seeks to restrain or prohibit
the transactions contemplated by this Agreement, (ii) the representations and warranties of the Purchaser contained in Part III
shall be true and correct in all respects as of the date of this Agreement and as of the date of Closing, and (iii) the adoption
and filing by the Company with the Secretary of State the Certificate of Designations relating to the Offered Securities in a
form and reflecting terms reasonably acceptable to the purchaser and to the Company.
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II.
|
The Company hereby represents and warrants to the Purchaser
that (i) the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware,
(ii) all corporate action required to be taken by the Company to authorize the issuance of the Offered Securities at the Closing
has been taken or will be taken prior to the Closing, (iii) the Shares, when issued, sold and delivered in accordance with the
terms and for the consideration set forth in this Agreement, and the shares of Common Stock and Warrants which the convertible
Preferred Stock can be converted into, upon issuance in accordance with the terms of this Agreement and the Certificate of Designations,
will be validly issued, fully paid and non-assessable, and when issued, will constitute valid and binding obligations of the Company.
|
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III.
|
The Purchaser hereby represents, and warrants to the
Company and agrees that:
|
(please check each
box and write in your initials to confirm your agreement)
o
Residency
: The Purchaser is a legal resident of the State of Kansas.
Initials
: _______________
o
Current
Stockholder
: As of the date hereof the Purchaser is, and for at least the last three months has been, a stockholder of
the Company.
Initials
: ______________________
o
Institutional
Accredited Investor Status
: The Purchaser is an Institutional Accredited Investor as such term is defined pursuant to Regulation
D promulgated under the Securities Act and has completed and signed the Accredited Investor Questionnaire attached to this Agreement
as
Exhibit C
, the terms of which shall be deemed part of this Part III.
Initials
: _____________________
o
Nature of Investor’s Business
: The Purchaser is or holds itself out as being engaged primarily in the
business of investing, reinvesting and/or trading in securities.
Initials
: _____________________
[
Signature
Page Follows
]
IN WITNESS WHEREOF, the undersigned has
caused this Securities Purchase Agreement to be duly executed by its respective authorized signatories as of the date first indicated
above.
Name:
____________________________________________________________
Name of Authorized Signatory:
_____________________________________________________________
Title of Authorized Signatory:
______________________________________________________________
Signature of Authorized Signatory of Purchaser
:
_______________________________________________
Email Address of Authorized
Signatory:______________________________________________________
Facsimile Number of Authorized Signatory:
___________________________________________________
Address of Purchaser:
Address for Delivery of Securities to Purchaser (if not same
as address for notice):
Subscription Amount: $100,000
Preferred Shares: 58,824
Class D-1 Warrant Shares: 588,235
EIN Number: ___________________________
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|
Acknowledged and agreed to:
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NORTHWEST BIOTHERAPEUTICS, INC.
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a Delaware corporation
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By:
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/s/ Leslie J. Goldman
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Name:
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Leslie J. Goldman
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Title:
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Senior Vice President
|
|
[Signature Page to Northwest Biotherapeutics,
Inc. Subscription Agreement]
EXHIBIT A
FORM OF SERIES A PREFERRED
CERTIFICATE OF DESIGNATIONS
EXHIBIT B
FORM OF VOTING AGREEMENT
EXHIBIT C
ACCREDITED INVESTOR
STATUS
The Purchaser must initial the applicable
item below to indicate which method it will use to verify its status as an institutional “accredited investor” as
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, and to make any necessary representations and warranties
in connection with the verification of its status as an institutional accredited investor. The Purchaser agrees that it will provide
the Company with such documentation as the Company may reasonably request in connection with the representations of the Purchaser
as to its accredited investor status.
At least one of the following must
be applicable and initialed to participate in the offering.
FOR INDIVIDUALS INVESTING
(Please initial as appropriate)
|
Initial
|
1.
|
The Investor has an individual
net worth in excess of $1,000,000 and represents and warrants that such Investor has disclosed all liabilities necessary to make
a determination of net worth in such Investor’s net worth documentation.
In calculating
net worth for purposes of this Item 1 or Item 2 below:
|
|
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(i)
|
the Investor’s primary residence is not included
as an asset;
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(ii)
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indebtedness that is secured by the Investor’s
primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, is not
included as a liability; and
|
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(iii)
|
indebtedness that is secured by the Investor’s
primary residence in excess of the estimated fair market value of such primary residence is included as a liability.
|
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Initial
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2.
|
The Investor has joint
net worth with his or her spouse, in excess of $1,000,000 and (
please initial (a) and (b) below
)
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(a)
|
such Investor represents and warrants that such Investor has disclosed all liabilities necessary to make a determination of such Investor's net worth:
please initial here:_______________
AND
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|
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(b)
|
such Investor's spouse represents and warrants that he or she has disclosed all liabilities necessary to make a determination of his or her net worth:
please initial here:_______________
|
|
Initial
|
3.
|
The Investor had individual income (exclusive of any income attributable to his or her spouse) of more than $200,000 in each of the past two years, and represents and warrants that such Investor reasonably expects to reach the same income level in the current year.
|
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Initial
|
4.
|
The Investor had joint
income with his or her spouse of more than $300,000 in each of the past two years and
|
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(a)
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such Investor represents and warrants that he or she has a reasonable expectation of reaching the joint income level necessary to qualify as an accredited investor
please initial here:_______________
AND
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(b)
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such Investor’s spouse represents and warrants that he or she has a reasonable expectation of reaching the joint income level necessary to qualify as an accredited investor
please initial here:_______________
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FOR CORPORATIONS, PARTNERSHIPS, LIMITED
LIABILITY COMPANIES, EMPLOYEE BENEFIT PLANS OR IRA
(Please initial as appropriate)
|
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(B)
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Corporations, Partnerships, Limited Liability
Companies, Employee Benefit Plans or IRA
|
|
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1.
|
Has the subscribing entity been formed for the specific purpose of investing in the Offered Securities?
_____________ (yes/no)
|
If your answer to question 1
is “No,” CHECK whichever of the following statements (a-e) is applicable to the subscribing entity. If your answer
to question 1 is "Yes," the subscribing entity must be able to certify to statement (2) below in order to qualify
as an "accredited investor."
The undersigned
entity certifies that it is an “accredited investor” because it is:
(a) _______
an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, provided that
the investment decision is made by a plan fiduciary, as defined in section 3(21) of such Act, and the plan fiduciary is a
bank, savings and loan association, insurance company or registered investment adviser; or
(b) _______
an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 that has total
assets in excess of $5,000,000; or
(c) _______
each of its shareholders, partners, or beneficiaries meets at least one of the conditions described above under Section II, A,
Individual Accounts
. Please also CHECK the appropriate space in that section; or
(d) _______
the plan is a self-directed employee benefit plan and the investment decision is made solely by a person that meets at least one
of the conditions described above under Section II, A,
Individual Accounts.
Please
also CHECK the appropriate space in that section; or
(e) _______
a corporation, a partnership, limited liability company, or a Massachusetts or similar business trust with total assets in excess
of $5,000,000.
|
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2.
|
If the answer to Question B.1. above is “Yes,” please certify the statement below
is true and correct:
|
_______ The undersigned entity
certifies that it is an accredited investor because each of its shareholder or beneficiaries meets at least one of the conditions
described above under Section II, A,
Individual Accounts
. Please also CHECK the appropriate
space in that section.
|
|
1.
|
Has the subscribing entity been formed for the specific
purpose of investing in the Offered Securities?
_______________
(yes/no)
|
If your answer to question 1
is “No,” CHECK whichever of the following statements (a-c) is applicable to the subscribing entity. If your answer
to question 1 is “Yes,” the subscribing entity must be able to certify to the statement (c) below in order to
qualify as an “accredited investor.”
The undersigned trustee
certifies that the trust is an “accredited investor” because:
(a)_______
the trust has total assets in excess of $5,000,000 and the investment decision has been made by a “sophisticated person;”
o
r
(Note: Complete Section 2 below to show that the investment decision was made by a “sophisticated person”
);
or
(b)_______
the trustee making the investment decision on its behalf is a bank (as defined in Section 3(a)(2) of the Act), a saving and
loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, acting in its fiduciary capacity.
Purchaser:
Name of Authorized Signatory:
_____________________________________________________________
Title of Authorized Signatory:
______________________________________________________________
Signature of Authorized Signatory of Purchaser
:
_______________________________________________
Exhibit 99.1
|
4800 Montgomery Lane
Suite 800
Bethesda, MD 20814
|
t (240) 497-9024
f (240) 627-4121
|
www.nwbio.com
OTCQB: NWBO
|
For immediate release on Monday, December 4, 2017
NW Bio Announces Completion of $12 Million
Financing
Majority of Financing from New Investors
BETHESDA, Md., December 4, 2017 - Northwest
Biotherapeutics (OTCQB: NWBO) (NWBio), a biotechnology company developing DCVax® personalized immune therapies for solid tumor
cancers, announced that it has completed a $12 million financing to fund operations. The majority of the financing is being provided
by new investors.
The financing is in the form of Series A Convertible
Preferred Stock and Warrants. The Preferred Stock will be convertible into common stock, but only when common stock is available
or after 6 months following issuance. The Warrants will be exercisable for common stock, but only when common stock is available.
The shares are registered, but are subject to restrictions under which they may not be conveyed or traded until a shareholder vote
takes place, pursuant to which the number of authorized shares is increased. The shares are also subject to a voting agreement,
under which the investors have agreed to vote in support of such increase in authorized shares.
The investors are purchasing the Series A Preferred
Stock at a price of $1.70 per share, and each such preferred share will be convertible into 10 common shares valued at $0.17 cents
per share. The investors are also receiving Warrants for a number of common shares equal to the number of conversion shares, with
an exercise price of $0.22 per share and an exercise period of two years.
As reported in the Company’s recent 10-Q
filing, the Company has been in discussions with investors for this financing during the last couple of months. During this period,
while the price of the Company’s common stock hovered mostly at $0.16- $0.17 per share, the terms were set at $0.17 per share
of common stock and $0.22 exercise price for the warrants. As also previously reported, some of the investors provided advance
funding prior to completion of the financing and its documentation.
Linda Powers, the Company’s CEO, commented,
“We are pleased to see a growing number of new investors becoming interested in our DCVax technology and its encouraging
potential, and providing the majority of the largest financing we have done this year. We are also grateful for our long-term,
patient and loyal shareholder base, and their participation in this financing as well. It is gratifying to have both ongoing and
expanded support as we move forward with our ongoing Phase 3 trial (in which we are continuing to ship doses, treat patients and
collect data) and other programs we have been preparing.”
About Northwest Biotherapeutics
Northwest Biotherapeutics is a biotechnology
company focused on developing personalized immunotherapy products designed to treat cancers more effectively than current treatments,
without toxicities of the kind associated with chemotherapies, and on a cost-effective basis, in both the North America and Europe.
The Company has a broad platform technology for DCVax® dendritic cell-based vaccines. The Company’s lead program
is a 331-patient Phase III trial in newly diagnosed Glioblastoma multiforme (GBM). GBM is the most aggressive and lethal form of
brain cancer, and is an “orphan disease.” The Company is also preparing for the Phase II portion of Phase I/II
trials with DCVax-Direct for inoperable solid tumors. It has completed the 40-patient Phase I portion of the trial.
The Company also previously conducted a Phase I/II trial with DCVax-L for metastatic ovarian cancer together with the University
of Pennsylvania.
Disclaimer
Statements made in this news release that are not historical
facts, including statements concerning future treatment of patients using DCVax and future clinical trials, are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as “expect,”
“believe,” “intend,” “design,” “plan,” “continue,” “may,”
“will,” “anticipate,” 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 risks related to the
Company’s ability to complete the trials on a timely basis, uncertainties about the clinical trials process, uncertainties
about the timely performance of third parties, risks related to whether the Company’s products will demonstrate safety and
efficacy, risks related to the Company’s ongoing ability to raise additional capital, and other risks included in the Company’s
Securities and Exchange Commission (“SEC”) filings. Additional information on the foregoing risk factors and
other factors, including Risk Factors, which could affect the Company’s results, is included in its 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 from 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.
CONTACT
Les Goldman
202-841-7909
lgoldman@nwbio.com