SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): December 29, 2017
Northwest Biotherapeutics, Inc.
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction||(Commission||(IRS Employer|
|of incorporation)||File Number)||Identification No.)|
4800 Montgomery Lane, Suite 800
Bethesda, Maryland 20814
(Address of Principal Executive Offices)
(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):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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. ¨
Item 1.01 Entry into a Material Definitive Agreement.
The discussion in Item 3.02 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 1.01.
Item 3.02 Unregistered Sales of Equity Securities.
Regulation D Offering
On December 29, 2017, Northwest Biotherapeutics, Inc. (the “Company”) entered into Subscription Agreements (the “Subscription Agreements”) with certain unaffiliated investors. Pursuant to the Subscription Agreements, the Company sold to unaffiliated investors (the “Series B Offering”) an aggregate of 381,079 shares of Series B Preferred Stock, par value $0.001 per share, at a purchase price of $2.30 per share, and issued two-year Class D-2 Warrants (the “Class D-2 Warrants”) to purchase up to an aggregate of 3,810,790 shares of common stock, par value $0.001 per share, at an exercise price of $0.30 per share.
The Series B 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 B Preferred Stock will be convertible at the option of the holder, at any time, into a total of 10 shares of common stock, par value $0.001 per share, for a total of 3,810,790 shares of common stock (the equivalent of a conversion price of $0.23 per share of common stock). Shares of the Series B 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 B Preferred Stock is still outstanding at that time, each holder will, with respect to each Series B Preferred share owned by such holder, be entitled to a liquidation preference of either the amount paid for the Series B Preferred share or the amount that the holder of such Series B Preferred share would have received if it had converted such share to common stock immediately prior to the liquidation event.
The Class D-2 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 B Offering, the Company entered into voting agreements with certain investors, in substantially the form filed as Exhibit 10.2 hereto and incorporated herein by reference.
The Series B Preferred Stock and Class D-2 Warrants described in this Item 3.02 were offered and sold in reliance upon exemptions from registration pursuant to Rule 506(c) of Regulation D promulgated under Section 4(a)(2) under the Securities Act of 1933, as amended (the “Securities Act”). Each of the offerings was made to an “accredited investor” (as defined by Rule 501 under the Securities Act).
The foregoing is only a summary of the material terms of the documents related to the Series B Offering. The foregoing description of the Series B Preferred Stock is qualified in its entirety by reference to the full text of the Certificate of Designations of Series B 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-2 Warrants is qualified in its entirety by reference to the Form of Class D-2 Common Stock Purchase Warrant which is filed as Exhibits 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.
Item 3.03 Material Modification to Rights of Security Holders.
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 3.03.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Certificate of Designations of Series B 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 28, 2017, Northwest Biotherapeutics, Inc. (the “Company”) filed the Certificate of Designations of Series B Preferred Stock (the “Series B Certificate of Designations”) with the Secretary of State of the State of Delaware, setting forth the terms of the Company’s Series B Preferred Stock. The Series B Certificate of Designations, effective as of December 28, 2017, created out of the authorized and unissued shares of preferred stock of the Company, the Series B 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 B 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 B Certificate of Designations and is qualified in its entirety by reference to the full text of the Series B Certificate of Designations, which is included as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
|3.1||Certificate of Designations of Series B Preferred Stock.|
|10.1||Form of Class D-2 Common Stock Purchase Warrant.|
|10.2||Form of Voting Agreement.|
|10.3||Form of Subscription Agreement.|
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.|
|Date: January 4, 2018||By:||/s/ Linda Powers|
|Title:||Chief Executive Officer and Chairman|
CERTIFICATE OF DESIGNATIONS
SERIES B CONVERTIBLE PREFERRED STOCK
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:
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 B Convertible Preferred Stock” (the “ Series B Preferred Stock ”), consisting of 15,000,000 shares, par value $0.001 per share (each, a “ Series B Preferred Share ”). Each Series B Preferred Share shall rank equally in all respects and shall be subject to the following provisions of this Certificate of Designations. Series B 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.
RANK AND PREFERENCE
Section 2.1 The Series B 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 B 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 B Preferred Share equal to, at the election of the relevant such Holder, either (a) $2.30 per Series B Preferred Share or (b) the amount such Holder would have received had such Holder, immediately prior to such Liquidation Event, converted such Series B Preferred Share into shares of Common Stock as set forth herein.
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 B Preferred Share held by such Holder. Notwithstanding the foregoing, Holders of Series B 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) , t he Series B Preferred Stock shall not be directly or indirectly assignable or transferable by any Holder thereof, and no Holder of Series B Preferred Stock shall at any time, directly or indirectly, sell, assign, transfer or otherwise dispose of any shares of Series B 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.
Section 4.1. Shares of Common Stock To Be Delivered Upon Conversion. Each Series B 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 B Preferred Stock, but in any event not later than six (6) months after issuance of such Series B Preferred Stock (such date, the “ Convertibility Date ”), e ach Holder shall be entitled, subject to such availability of Common Stock, to convert some or all of their Series B 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 B Preferred Shares so converted shall no longer be deemed to be outstanding, and all rights of the Holder with respect to such Series B 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 B Preferred Shares to be automatically converted (without any further action by the Holder(s) and whether or not the Series B Preferred Shares (in the case of uncertificated shares) or the certificates representing the Series B 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 B Preferred Shares. From and after such conversions (the dates and times of such conversion, the applicable “ Mandatory Conversion Date ”), the Series B Preferred Shares so converted shall no longer be deemed to be outstanding, and all rights of the Holder with respect to such Series B 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. Subject to Section 6.5, the Company shall not effect any conversion of the Series B Preferred Stock, and a Holder shall not have the right to convert any portion of the Series B 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 B 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 B 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 B 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 B Preferred Shares pursuant to Section 4.2, the converting Holder must surrender the applicable Series B Preferred Shares (in the case of uncertificated shares) or the certificates representing such Series B Preferred Shares at the office of the Company’s transfer agent for the Series B 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 B 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 B 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 B 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 B Preferred Stock and the number of votes held by each Series B 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 B 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 B 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.
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 B 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.
Section 6.1. Lost, Stolen, Mutilated or Destroyed Share Certificates . If a stock certificate representing Series B 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 B 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 B 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 B Preferred Shares are outstanding, in addition to any other vote required by law, the affirmative vote of the holders of a majority in voting power of the Series B 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 B Preferred Stock) that would alter or change the rights, powers or preferences of the Series B 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 B Preferred Shares granted hereunder may be waived as to all shares of Series B Preferred Stock (and the holders thereof) upon the written consent of the Company and the holders of a majority in voting power of the Series B Preferred Shares. Further, in addition to the foregoing, and notwithstanding any provision in this Certificate of Designations to the contrary, (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 Company has caused this Certificate of Designations to be duly executed and acknowledged by the undersigned, thereunto duly authorized, this 28th day of December, 2017.
|NORTHWEST BIOTHERAPEUTICS, INC.|
|By:||/s/ Leslie J. Goldman|
|Name:||Leslie J. Goldman|
|Title:||Senior Vice President|
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR UNLESS SUCH TRANSACTION IS IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
NORTHWEST BIOTHERAPEUTICS, INC.
CLASS D-2 WARRANTS
|No. WD2-||____________ , 2017|
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 Class D-2 Warrant (the “ 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 Thirty Cents ($0.30) 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 or resale of 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:
|Where X =||the number of Exercise Shares to be issued to the Holder|
|Y =||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)|
|A =||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|
|B =||Exercise Price (as adjusted to the date of such calculation)|
“ 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 Securities Are Not Registered.
(a) The Holder understands that the Warrant and the Exercise Shares have not been registered under the Act on the basis that no distribution or public offering of the Common Stock of the Company is to be effected by the Holder. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the securities. The Holder represents and warrants that it has no such present intention.
(b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available.
(c) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold pursuant to Rule 144 adopted under the Act unless certain conditions are met, including, among other things, the availability of certain current public information about the Company, the resale following the required holding period under Rule 144 and the number of shares being sold during any three month period not exceeding specified limitations.
4.3 Disposition of Warrant and Exercise Shares. The Holder understands and agrees that any Exercise Shares issued pursuant to exercise of this Warrant will not be registered at the time of issuance, and all certificates evidencing the Shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR UNLESS SUCH TRANSACTION IS IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
4.4 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-2 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-2 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.
|Northwest Biotherapeutics, Inc.|
|By:||/s/ Leslie J. Goldman|
|Name:||Leslie J. Goldman|
|Title:||Senior Vice President|
|Address:||4800 Montgomery Lane|
|Bethesda, MD 20814|
|ACKNOWLEDGED AND AGREED :|
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.
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:
(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:
Dated: __________, 20__
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.
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”).
WHEREAS, the Company has established a class of Series B Preferred Stock (the “ Series B Preferred ”) and the terms and conditions of such Series B 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 B Preferred and certain warrants to acquire shares of the Common Stock of the Company from the Company (the “ Class D-2 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.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Company 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.
(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) (the end of such date, the “ Termination Date ”).
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) In addition to any restrictions on transfer under applicable federal and state securities laws, 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 shares of the Company’s preferred stock 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.
(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.
|[ INVESTOR ]|
|NORTHWEST BIOTHERAPEUTICS, INC.|
|/s/ Leslie J. Goldman|
|Name: Leslie J. Goldman|
|Title: Senior Vice President|
[Signature Page to Voting Agreement]
NORTHWEST BIOTHERAPEUTICS, INC.
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, the Company has determined to engage in an offering pursuant to Regulation D as promulgated by the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”);
WHEREAS, each of the Purchasers is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act; and
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:
|I.||Purchase and Sale|
|A.||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 $2.30 per share for [ ] shares of Series B Convertible Preferred Stock (the “ Series B Preferred Stock ”) (as set forth below in column A below, each Series B Convertible Preferred share convertible in accordance with the Certificate of Designations of the Series B Preferred Stock (the “ Certificate of Designations ”) into 10 shares of Common Stock priced at 23 cents per share for [ ] shares as calculated in Column B below, and a two year Class D-2 Warrant with a number of exercise shares equal to the number of converted shares of Common Stock ( [ ] shares) as calculated in Column C below, with an exercise price of 30 cents per share ($0.30). The aggregate subscription price to be paid by the Purchaser in respect of all the Offered Securities to be purchased pursuant to this Agreement is [ ] Dollars ($ [ ] ) (the “ Aggregate Purchase Price ”) as indicated in Column D below. The Series B Preferred Stock to be issued at the closing pursuant to this Agreement and the Class D-2 Warrants to be issued at the closing pursuant to this Agreement are collectively referred to as the “Offered Securities.”|
|Name and Address||
Shares of Series
Number of shares of
Common Stock issuable
Number Of Class D-2
Subscription Price For
Series B Preferred Stock
and Class D-2 Warrants
|(Equal to Column (A) multiplied by 10)||(Equal to Column (A) multiplied by 10)||
|[ ]||[ ]||[ ]||$ [ ]|
B. 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 shares of Series B Preferred Stock, containing the specific terms and procedures for converting to shares of Common Stock, and (ii) certificates representing the Class D-2 Warrants being purchased by such Purchaser at such Closing, against payment of the purchase price therefor by wire transfer of United States dollars in immediately available funds, to an escrow account designated by the Company to be held by Computershare Trust Company, N.A., as escrow agent.
C. 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, (iii) the adoption and filing by the Company with the Secretary of State the Certificate of Designations relating to the Series B Preferred Stock substantially in the form attached as Exhibit A hereto, and (iv) the Purchaser shall have provided the Company all documents and other information as the Company may request to ascertain such Purchaser’s status as an accredited investor.
|II.||The Company hereby represents and warrants to the Purchaser that:|
A. Organization and Qualification . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and 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.
B. Authorization; Valid Issuance of Offered Securities . The shares of Series B Preferred Stock are duly authorized and, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid and non-assessable. The Common Stock underlying the Series B Preferred Stock and Class D-2 Warrants, when issued upon conversion of the Series B Preferred Stock in accordance with the terms of this Agreement and the Certificate of Designations or upon exercise of the Class D-2 Warrants in accordance with the terms of this Agreement and the Class D-2 Warrants, as the case may be, will be validly issued, fully paid and non-assessable, and when issued, will constitute valid and binding obligations of the Company.
C. Governmental Consents and Filings . Assuming the accuracy of the representations made by the Purchaser in Section III of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for filings by the Company pursuant to Regulation D of the Securities Act, and applicable state securities laws, which have been made or will be made in a timely manner.
|III.||The Purchaser hereby represents, and warrants to the Company and agrees that:|
A. Purchase for Own Account . This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the Company, which by the Purchaser’s execution of this Agreement the Purchaser hereby confirms, that the Offered Securities to be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of federal, state or other applicable securities laws, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Offered Securities. The Purchaser has not been formed for the specific purpose of acquiring the Offered Securities.
B. Disclosure of Information . The Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Offered Securities with the Company’s management and has considered the information included in the Offering Memorandum (as defined below), including the information contained in, and incorporated by reference in, the section entitled “Risk Factors” therein. The Purchaser has consulted his, her or its own legal, tax, financial, investment and other advisors in connection with such Purchaser’s execution and delivery of this Agreement to the extent such Purchaser has deemed appropriate and such Purchaser’s investment in the Series B Preferred Stock and Class D-2 Warrants to be acquired by such Purchaser pursuant to this Agreement, and acknowledges that the Company is giving no such legal, tax, financial or investment advice to the Purchaser. The “Offering Memorandum” means the private placement memorandum in the form of Exhibit D attached to this Agreement, including all information incorporated by reference therein.
C. Restricted Securities . The Purchaser understands that the Offered Securities have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the Purchaser’s representations as expressed herein. The Purchaser understands that the Offered Securities are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser may be required to hold the Offered Securities indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Offered Securities for resale. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Offered Securities, and on requirements relating to the Company which are outside of the Purchaser’s control, and which the Company may not be able to satisfy. The Purchaser understands that this offering is not intended to be part of a public offering, and that the Purchaser will not be able to rely on the protection of Section 11 of the Securities Act.
D. No Public Market . The Purchaser understands that no public market now exists for the Offered Securities, and that the Company has made no assurances that a public market will ever exist for the Offered Securities.
E. Legends . The Purchaser understands that the Offered Securities, and any securities issued upon conversion or exercise of the Offered Securities, may be notated with one or all of the following legends:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.”
(a) Any other legend set forth in, or required by, this Agreement, the Certificate of Designations or the Class D-2 Warrants.
(b) Any legend required by the securities laws of any state to the extent such laws are applicable to the securities represented by the certificate, instrument, or book entry so legended.
F. Accredited Investor . The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
G. Disqualification Events . No “bad actor” disqualification event is applicable to the Purchaser or, to the Purchaser’s knowledge, any Person, with respect to such Purchaser as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, listed in the first paragraph of Rule 506(d)(1), except for a disqualification event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.
H. General Solicitation . Purchaser acknowledges that this offering is being made in reliance on the provision by the SEC that permits general solicitation or general advertising in an offering under Rule 506(c) based on the Securities and Exchange Commission Rule dated July 24, 2013 titled: “Eliminating the Prohibition against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings.”
(please check each box that applies and write in your initials to confirm)
¨ Residency : The Purchaser is a legal resident of the State of _____________.
Initials : _______________
¨ 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 : ______________________
¨ Accredited Investor Status : The Purchaser is an 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 E , the terms of which shall be deemed part of this Part III. Initials : _____________________
¨ 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 Subscription Agreement to be duly executed by its respective authorized signatories as of the date first indicated above.
Please provide the Purchaser information requested below and send your completed and executed Subscription Agreement by email to: corporateactionsUS@computershare.com
Name of Authorized Signatory:
Title of Authorized Signatory:
Signature of Authorized Signatory of Purchaser :
Email Address of Authorized (Please print):
Facsimile Number of Authorized Signatory:
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Address for Delivery of Securities to Purchaser (if not same as address for notice) (Please print):
Phone Number of Purchaser (Business and Personal) (Required):
Email Address of Purchaser (Required):
Purchaser Control Number (found on first page of this Agreement) (Required):
Subscription Amount: $ [ ]
Shares of Series B Preferred Stock: [ ]
Class D-2 Warrant Shares: [ ]
EIN Number: ___________________________
|Acknowledged and agreed to:|
|NORTHWEST BIOTHERAPEUTICS, INC.|
|a Delaware corporation|
|By:||/s/ Leslie J. Goldman|
|Name: Leslie J. Goldman|
|Title: Senior Vice President|
[Signature Page to Northwest Biotherapeutics, Inc. Subscription Agreement]