-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FNHS/NmewSJ5Th3b1oLGqTQME5Uuj9jx/Lo9tgm/LzVPKvVTAmGL7RudY3t6xsN3 FDdCIJS+/Rs1iEYPo200VA== 0000891020-05-000024.txt : 20050201 0000891020-05-000024.hdr.sgml : 20050201 20050201171626 ACCESSION NUMBER: 0000891020-05-000024 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20050126 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050201 DATE AS OF CHANGE: 20050201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHWEST BIOTHERAPEUTICS INC CENTRAL INDEX KEY: 0001072379 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 943306718 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-33393 FILM NUMBER: 05566621 BUSINESS ADDRESS: STREET 1: 21720-23RD DRIVE SE, SUITE 100 CITY: BOTHELL STATE: WA ZIP: 98021 BUSINESS PHONE: 4256083000 8-K 1 v05111e8vk.htm FORM 8-K e8vk
 

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) JANUARY 26, 2005

NORTHWEST BIOTHERAPEUTICS, INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

         
DELAWARE   0-33393   94-3306718
(STATE OR OTHER
JURISDICTION
OF INCORPORATION) 		  (COMMISSION FILE
NUMBER) 		  (I.R.S. EMPLOYER
IDENTIFICATION NO.)

22322 20th Avenue SE, Suite 150, Bothell, WA 98021
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)

REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE (425) 608-3000

INAPPLICABLE
(FORMER NAME OR FORMER ADDRESS IF CHANGED SINCE LAST REPORT)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

     
o
  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
    
o
  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
    
o
  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
    
o
  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

ITEM 1.01 Entry Into a Material Definitive Agreement.

On January 26, 2005 Northwest Biotherapeutics, Inc. (the “Company”) entered into a Securities Purchase Agreement with Toucan Capital Fund II, L.P. (“Toucan”). Pursuant to the terms of the Securities Purchase Agreement the Company issued Toucan 32,500,000 shares of Series A Cumulative Convertible Preferred Stock (“Series A Stock”) at a price of $0.04 per share, or an aggregate purchase price of $1,300,000. In connection with the Securities Purchase Agreement, the Company has issued a warrant (the “Series A Warrant”) to Toucan, which is exercisable for up to 13,000,000 shares of Series A Stock. The exercise price of the warrant is $0.04 and it is exercisable for up to seven years.

The Securities Purchase Agreement was entered into in connection with the Amended and Restated Recapitalization Agreement dated July 30, 2004, as amended, between the Company and Toucan (the “Recapitalization Agreement”). The Recapitalization Agreement calls for a two-stage recapitalization of the Company consisting of a bridge period and an equity financing period. The equity financing period commenced on January 26, 2005 and will last up to 12 months. During the equity financing period, the Company intends to sell up to $40 million of convertible preferred stock in accordance with the terms of the Recapitalization Agreement. Any additional financing is contingent upon the Company complying with covenants in the Recapitalization Agreement, as amended, and locating additional investors who are willing to invest in the Company on the terms proposed.

In connection with the sale of Series A Stock to Toucan, the Company and Toucan amended the Recapitalization Agreement (“Amendment No. 4”). Amendment No. 4 prevents the Company from changing the number of its authorized directors without the consent of the holders of majority of the shares of Series A Stock and permits such holders to cause the Company to increase the total number of directors up to a maximum of seven, and clarifies that future financing during the equity financing period may be provided in the form of either debt or equity.

Also in connection with the recent sale of Series A Stock to Toucan, the Company and Toucan amended the Amended and Restated Binding Term Sheet dated October 22, 2004, as amended, between the parties (the “Term Sheet”). The purpose of the amendment was to conform the provisions of the Term Sheet pertaining to the Company’s Board of Directors to the changes in Amendment No. 4.

The Company and Toucan also entered into the First Amendment to Warrants which amends certain warrants (the “Subsequent Bridge Warrants”) previously issued to Toucan, which are exercisable for an aggregate of 32,500,000 shares of capital stock, by clarifying that the exercise prices of the Subsequent Bridge Warrants are $0.04 per share (subject to adjustment). To date the Company has issued Toucan warrants that are currently exercisable for an aggregate of up to 111,500,000 shares of the Company’s capital stock, consisting of the Series A Warrant, the Subsequent Bridge Warrants and additional warrants exercisable for an aggregate of 66,000,000 shares of capital stock at $0.01 per share.

1

 

The Securities Purchase Agreement, the Series A Warrant, Amendment No. 4, the Term Sheet and the First Amendment to Warrants, are filed as exhibits to this Form 8-K and are incorporated by reference herein .

ITEM 3.02 Unregistered Sales of Equity Securities.

The securities described in Item 1.01 above were offered and sold in reliance upon exemptions from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder. The agreements executed in connection with the private placement contain representations to support the Company’s reasonable belief that: (i) Toucan had access to information concerning the Company’s operations and financial condition; (ii) Toucan is acquiring the securities for its own account and not with a view to the distribution thereof in the absence of an effective registration statement or an applicable exemption from registration; and (iii) Toucan is an accredited investor (as defined by Rule 501 under the Securities Act of 1933, as amended). At the time of their issuance, the securities will be deemed to be restricted securities for purposes of the Securities Act of 1933, as amended, and the certificates representing the securities shall bear legends to that effect.

ITEM 3.03 Material Modification to Rights of Security Holders.

The authorization and issuance on January 26, 2005, of the Series A Preferred Stock described in Item 1.01 impacts the rights of the holders of the Company’s Common Stock in that (i) the Certificate of Designations of the Series A Stock prohibits the Company from issuing dividends or making distributions to the holders of its Common Stock for so long as any shares of Series A Stock are outstanding unless all accrued and unpaid dividends of the Series A Stock are paid and an equivalent dividend or distribution is paid on each outstanding share of Series A Stock; and (ii) grants the holders of Series A Stock a liquidation preference equal to their original purchase price plus all accrued but unpaid dividends in the event of an acquisition, dissolution, liquidation or winding up of the Company. In addition, the holders of Series A Common Stock generally vote together with the holders of Common Stock on an as-converted basis.

2

 

ITEM 5.01 Changes in Control of Registrant.

As a result of the purchase of the Series A Stock on January 26, 2005 as described in Item 1.01, Toucan directly acquired approximately 63% of the Company’s outstanding voting securities. Along with the shares of capital stock underlying currently exercisable warrants and currently convertible promissory notes held by Toucan, Toucan beneficially owns approximately 93.1% of the Company’s voting securities. To date, Toucan has invested an aggregate of $5,650,000 in the Company, consisting of $1,300,000 provided for the purchase of the Series A Stock and the Series A Warrant, as described in Item 1.01, and an additional $4,350,000 provided for the purchase of convertible promissory notes and associated warrants, as previously disclosed by the Company. All of the securities described in this Item 5.01 were acquired by Toucan with funds received from its partners for investment purposes.

ITEM 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On January 26, 2005, the Board of Directors adopted an amendment to the Company’s bylaws to decrease the maximum authorized number directors from nine to seven and to make other changes to the bylaws relating to actions by the Board of Directors. The bylaws, as amended, are attached as Exhibit 3.1 to this Form 8-K and are incorporated herein by reference.

The Board of Directors of the Company adopted a Certificate of Designations (the “Certificate”) of the Series A Stock and the Company filed the Certificate with the Delaware Secretary of State on January 26, 2005. The Certificate provides, among other things, that the Series A Stock (i) is entitled to cumulative dividends at the rate of 10% per year; (ii) is entitled to a liquidation preference equal to its initial purchase price plus all accrued and unpaid dividends; (iii) has a preference over the Common Stock with respect to dividends and distributions; (iv) is entitled to participate on an as-converted basis with the Common Stock on

3

 

any distributions after the payment of any preferential amounts to the Series A Stock; (v) votes on an as-converted basis with the Common Stock on matters submitted to common stockholders for approval and as a separate class on certain other material matters; and (vi) is convertible into Common Stock on a one-for-one basis (subject to adjustment in the event of stock dividends, stock splits, reverse stock splits, recapitalizations, etc. and in the event of certain dilutive issuances by the Company). The Certificate also provides that the consent of the holders of a majority of the Series A Stock is required in the event that the Company elects to undertake certain significant business actions. The Certificate is attached as Exhibit 4.1 to this Form 8-K and is incorporated herein by reference and the foregoing description is qualified in its entirety by reference to the full text of the Certificate.

ITEM 7.01 Regulation FD Disclosure.

The following information is being furnished pursuant to Item 7.01 of Form 8-K. This information shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing.

On January 31, 2005 the Company issued a press release announcing that it had received clearance from the Food and Drug Administration to begin assessment of its cell based dendritic cell product, candidate DC Vax®-Prostate, in a Phase III clinical trial for non-metastic hormone independent prostate cancer. A copy of the press release is furnished as Exhibit 99.1 and is incorporated herein by reference.

ITEM 9.01 Financial Statements and Exhibits

(c)   Exhibits.

3.1   Certificate of Designations, Preferences and Rights of Series A Cumulative Convertible Preferred Stock.
 
3.2   Second Amended and Restated Bylaws of Northwest Biotherapeutics, Inc.
 
10.1   Securities Purchase Agreement between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, LP dated January 26, 2005.
 
10.2   Warrant to purchase securities of the Company dated January 26, 2005 issued to Toucan Capital Fund II, L.P.
 
10.3   Amendment No. 4 to the Amended and Restated Recapitalization Agreement between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, L.P., dated January 26, 2005.
 
10.4   Second Amendment to the Amended and Restated Binding Term Sheet between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, L.P., dated January 26, 2005.
 
10.5   First Amendment to Warrants between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, L.P. dated January 26, 2005.
 
99.1   Press Release dated January 31, 2005 and furnished pursuant to Item 7.01.

4

 

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

         
    NORTHWEST BIOTHERAPEUTICS, INC.
 
        
  By   /s/ Alton Boynton
     
Alton, L. Boynton
President
 
        
Dated: February 1, 2005
        

5

EX-3.1 2 v05111exv3w1.txt EXHIBIT 3.1 EXHIBIT 3.1 CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK OF NORTHWEST BIOTHERAPEUTICS, INC. (Pursuant to Section 151 of the Delaware General Corporation Law) Northwest Biotherapeutics, Inc. (the "COMPANY"), a corporation organized and existing under the laws of the State of Delaware, hereby certifies that, pursuant to authority conferred on its Board of Directors (the "BOARD") by the Sixth Amended and Restated Certificate of Incorporation, as amended, of the Company, the following resolution was adopted by the Board by unanimous written consent dated January 26, 2005, which resolution remains in full force and effect on the date hereof: RESOLVED, that there is hereby established a series of the Company's authorized Preferred Stock (the "PREFERRED STOCK") having a par value of $0.001 per share, which series shall be designated as "Series A Cumulative Convertible Preferred Stock" (the "SERIES A PREFERRED") and shall consist of fifty million (50,000,000) shares. The shares of Series A Preferred shall have the voting powers, designations, preferences and other special rights, and qualifications, limitations and restrictions thereof set forth below: 1. DIVIDEND RIGHTS. (A) Holders of Series A Preferred, in preference to the holders of Common Stock, shall be entitled to receive, when, as and if declared by the Board, but only out of funds that are legally available therefor, cash dividends at the rate of ten percent (10%) of the Original Issue Price (as defined below) per annum on each outstanding share of Series A Preferred. Such dividends shall be cumulative, whether or not earned or declared, shall be compounded quarterly, and shall be payable as and when declared by the Board, and upon the occurrence of a Liquidation Event, Acquisition or Asset Transfer (each as defined below). (B) The "ORIGINAL ISSUE PRICE" of the Series A Preferred shall be four cents ($0.04) per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the filing date hereof). (C) So long as any shares of Series A Preferred are outstanding, the Company shall not pay or declare any dividend, whether in cash or property, or make any other distribution on the Common Stock or any other securities issued by the Company other than the Series A Preferred, or purchase, redeem or otherwise acquire for value any shares of Common Stock or any other securities issued by the Company other than the Series A Preferred until all 1. dividends as set forth in Section 1(a) above on the Series A Preferred shall have been paid or declared an set apart, except for: (I) acquisitions of up to $100,000 of Common Stock by the Company per year from employees, officers, directors, consultants, advisors or other persons performing services for the Company pursuant to agreements which permit the Company to repurchase such shares at cost upon termination of services to the Company; (II) subject to approval of the holders of a majority of the outstanding shares of Series A Preferred in accordance with Section 2(b)(vi) hereof, acquisitions of Common Stock in exercise of the Company's right of first refusal to repurchase such shares; or (III) distributions to holders of Common Stock in accordance with Sections 3 and 4. (D) In the event dividends are paid on any share of Common Stock or any other securities issued by the Company, the Company shall pay an additional dividend on all outstanding shares of Series A Preferred in a per share amount equal (on an as-if-converted to Common Stock basis) to the amount paid or set aside for each share of Common Stock or any other securities issued by the Company, respectively. (E) The provisions of Sections 1(c) and 1(d) shall not apply to a dividend payable solely in Common Stock to which the provisions of Section 5(f) hereof are applicable. 2. VOTING RIGHTS. (A) GENERAL RIGHTS. Each holder of shares of the Series A Preferred shall be entitled to the number of votes equal to the number of shares of Common Stock into which such shares of Series A Preferred could be converted (pursuant to Section 5 hereof) immediately after the close of business on the record date fixed for such meeting or the effective date of such written consent and shall have voting rights and powers equal to the voting rights and powers of the Common Stock and shall be entitled to notice of any stockholders' meeting in accordance with the bylaws of the Company. Except as otherwise provided herein or as required by law, the Series A Preferred shall vote together with the Common Stock at any annual or special meeting of the stockholders and not as a separate class, and may act by written consent in the same manner as the Common Stock. (B) SEPARATE VOTE OF SERIES A PREFERRED. For so long as at least 1,000,000 shares of Series A Preferred (subject to adjustment for any stock split, reverse stock split or other similar event affecting the Series A Preferred after the filing date hereof) remain outstanding, in addition to any other vote or consent required herein or by law, the approval of the Board and the vote or written consent of the holders of at least a majority of the outstanding Series A Preferred shall be necessary for effecting or validating the following actions (whether by merger, recapitalization or otherwise): 2. (I) Any amendment, alteration, or repeal of any provision of the Certificate of Incorporation or the Bylaws of the Company (including any filing of a Certificate of Designation); (II) Any issuance of shares of Series A Preferred or any other securities exercisable for or convertible into Series A Preferred; (III) Any increase or decrease (other than by conversion) in the designated number of shares of Series A Preferred; (IV) Any increase or decrease (other than by conversion) in the authorized number of shares of Common Stock or Preferred Stock; (V) Any authorization, designation or issuance, whether by recapitalization, reclassification or otherwise, of any class or series of equity securities or any other securities exercisable for or convertible into equity securities of the Company that has redemption rights or that ranks on a parity with or senior to the Series A Preferred in right of liquidation preference, voting rights, dividend rights or any other rights, preferences or privileges, or any increase in the authorized or designated number of any such new class or series; (VI) Any redemption, repurchase, acquisition (or payment into or setting aside for a sinking fund for such purpose), payment or declaration of dividends or other distributions with respect to Common Stock or common stock equivalents (except for acquisitions of Common Stock by the Company permitted by Section 1(c)(i) hereof); (VII) Any agreement by the Company or its stockholders regarding an Asset Transfer or Acquisition (each as defined in Section 4 hereof); (VIII) Any dissolution, liquidation or winding up of the Company; (IX) Any increase or decrease in the authorized number of members of the Board; (X) Any sale, lease, assignment, transfer or other conveyance of, or any encumbrance granted upon, all or substantially all of the assets of the Company or any of its subsidiaries in one or more related transactions; (XI) Any reclassification, recapitalization or other change of any capital stock of the Company; (XII) Any issuance of shares of Common Stock or Convertible Securities after the Original Issue Date to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary other than pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board and the holders of a majority of the outstanding shares of Series A Preferred; or 3. (XIII) Any agreement, promise, commitment, obligation or undertaking to do any of the foregoing. 3. LIQUIDATION RIGHTS. (A) Upon any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary (a "LIQUIDATION EVENT"), before any distribution or payment shall be made to the holders of any Common Stock or other equity security, the holders of Series A Preferred shall be entitled to be paid out of the assets of the Company legally available for distribution for each share of Series A Preferred held by them, an amount per share of Series A Preferred equal to the Original Issue Price plus (to the extent of current and/or retained earnings) all accrued and unpaid dividends and declared and unpaid dividends on the Series A Preferred (or such lesser amount as is the maximum amount acceptable under applicable U.S. Small Business Administration and Securities and Exchange Commission rules and regulations). If, upon any such Liquidation Event, the assets of the Company shall be insufficient to make payment in full to all holders of Series A Preferred of the liquidation preference set forth in this Section 3(a), then such assets (or consideration) shall be distributed among the holders of Series A Preferred at the time outstanding, ratably in proportion to the full amounts to which they would otherwise be respectively entitled. (B) After the payment of the full liquidation preference of the Series A Preferred as set forth in Section 3(a) above, the assets of the Company legally available for distribution in such Liquidation Event (or the consideration received by the Company or its stockholders in such Acquisition or Asset Transfer), if any, shall be distributed ratably to the holders of the Common Stock and Series A Preferred on an as-if-converted to Common Stock basis. 4. ASSET TRANSFER OR ACQUISITION RIGHTS. (A) In the event that the Company is a party to an Acquisition or Asset Transfer (as hereinafter defined), then each holder of Series A Preferred shall be entitled to receive, for each share of Series A Preferred then held, out of the proceeds of such Acquisition or Asset Transfer, the greater of the amount of cash, securities or other property to which such holder would be entitled to receive in a Liquidation Event pursuant to (i) Section 3(a) and 3(b) above or (ii) the amount of cash, securities or other property to which such holder would be entitled to receive in a Liquidation Event with respect to such shares if such shares had been converted to Common Stock immediately prior to such Acquisition or Asset Transfer. (B) For the purposes of this Section 4: (i) "ACQUISITION" shall mean (A) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; or (B) any transaction or series of related transactions to which the Company is a party in which in 4. excess of fifty percent (50%) of the Company's voting power is transferred; provided that an Acquisition shall not include (x) any issuance of Series A Preferred contemplated by the Amended and Restated Recapitalization Agreement, dated as of July 30, 2004, by and between the Company and Toucan Capital Fund II, L.P., as such agreement may be amended from time to time (the "Recapitalization Agreement"), the conversion of any of the Notes representing Bridge Funding, or exercise of any Bridge Warrants or Preferred Stock Warrants (each as defined in the Recapitalization Agreement) and (y) any transaction or series of transactions specifically deemed not to constitute an "Acquisition" by the vote or written consent of the holders of a majority of the outstanding shares of Series A Preferred; and (ii) "ASSET TRANSFER" shall mean a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company. (C) In any Acquisition or Asset Transfer, if the consideration received is other than cash, the value of such consideration will be deemed its fair market value as determined in good faith by the Board, provided that any securities shall be valued as follows: (I) Securities not subject to investment letter or other similar restrictions on free marketability (which shall be covered by (ii) below): (A) If traded on a securities exchange or through the Nasdaq Stock Market, the value shall be deemed to be the average of the closing sale prices of the securities on such quotation system over the ten (10) day period ending three (3) days prior to the closing; (B) If actively traded over-the-counter, the value shall be deemed to be the average of the last reported sales price of the securities over the ten (10) day period ending three (3) days prior to the closing; and (C) If there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board. (II) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder's status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (i) (A), (B) or (C) to reflect the approximate fair market value thereof, as determined in good faith by the Board. (III) Notwithstanding anything to the contrary in this Section 4, if the definitive transaction documents for an Acquisition or Asset Transfer provide for a different method of valuation, the method of valuation set forth in such documents shall control. 5. CONVERSION RIGHTS. The holders of the Series A Preferred shall have the following rights with respect to the conversion of the Series A Preferred into shares of Common Stock (the "CONVERSION RIGHTS"): 5. (A) OPTIONAL CONVERSION. Subject to and in compliance with the provisions of this Section 5, any shares of Series A Preferred may, at the option of the holder, be converted at any time into fully-paid and nonassessable shares of Common Stock. The number of shares of Common Stock to which a holder of Series A Preferred shall be entitled upon conversion shall be the product obtained by multiplying the "SERIES A PREFERRED CONVERSION RATE" then in effect (determined as provided in Section 5(b)) by the number of shares of Series A Preferred being converted. (B) SERIES A PREFERRED CONVERSION RATE. The conversion rate in effect at any time for conversion of the Series A Preferred (the "SERIES A PREFERRED CONVERSION RATE") shall be the quotient obtained by dividing the Original Issue Price of the Series A Preferred by the "Series A Preferred Conversion Price," calculated as provided in Section 5(c). (C) SERIES A PREFERRED CONVERSION PRICE. The conversion price for the Series A Preferred shall initially be the Original Issue Price of the Series A Preferred (the "SERIES A PREFERRED CONVERSION PRICE"). Such initial Series A Preferred Conversion Price shall be adjusted from time to time in accordance with this Section 5. All references to the Series A Preferred Conversion Price herein shall mean the Series A Preferred Conversion Price as so adjusted. (D) MECHANICS OF CONVERSION. Each holder of Series A Preferred who desires to convert the same into shares of Common Stock pursuant to this Section 5 shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or any transfer agent for the Series A Preferred, and shall give written notice to the Company at such office that such holder elects to convert the same. Such notice shall state the number of shares of Series A Preferred being converted. Thereupon, the Company shall promptly issue and deliver at such office to such holder a certificate or certificates for the number of shares of Common Stock to which such holder is entitled and shall promptly pay (i) in cash or, to the extent sufficient funds are not then legally available therefor or to the extent that the holder so elects, in Common Stock (at the Common Stock's fair market value determined by the Board as of the date of such conversion), any declared and unpaid dividends and accrued and unpaid dividends on the shares of Series A Preferred being converted and (ii) in cash (at the Common Stock's fair market value determined by the Board as of the date of conversion) the value of any fractional share of Common Stock otherwise issuable to any holder of Series A Preferred. For the purposes of this Section 5(d), the fair market value of the Company's Common Stock shall be the last reported sales price reported on the NASD over-the-counter bulletin board (or if the Common Stock is traded on another securities market, the last reported sales price of the Common Stock on such securities market) on the date of conversion. If the Common Stock is not publicly traded on the date of conversion, the fair market value of the Company's Common Stock for the purposes of this Section 5(d) shall be the fair market value as determined in good faith by the Board. Such conversion shall be deemed to have been made at the close of business on the date of such surrender of the certificates representing the shares of Series A Preferred to be converted, and the person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on such date. 6. (E) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If at any time or from time to time on or after the date that the first share of Series A Preferred is issued (the "ORIGINAL ISSUE DATE") the Company effects a subdivision of the outstanding Common Stock without a corresponding subdivision of the Series A Preferred, the Series A Preferred Conversion Price in effect immediately before that subdivision shall be proportionately decreased. Conversely, if at any time or from time to time after the Original Issue Date the Company combines the outstanding shares of Common Stock into a smaller number of shares without a corresponding combination of the Series A Preferred, the Series A Preferred Conversion Price in effect immediately before the combination shall be proportionately increased. Any adjustment under this Section 5(e) shall become effective at the close of business on the date the subdivision or combination becomes effective. (F) ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS. If at any time or from time to time on or after the Original Issue Date the Company pays to holders of Common Stock a dividend or other distribution in additional shares of Common Stock without a corresponding dividend or other distribution to holders of Preferred Stock, the Series A Preferred Conversion Price then in effect shall be decreased as of the time of such issuance, as provided below: (I) The Series A Preferred Conversion Price shall be adjusted by multiplying the Series A Preferred Conversion Price then in effect by a fraction equal to: (A) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance, and (B) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance plus the number of shares of Common Stock issuable in payment of such dividend or distribution; (II) If the Company fixes a record date to determine which holders of Common Stock are entitled to receive such dividend or other distribution, the Series A Preferred Conversion Price shall be fixed as of the close of business on such record date and the number of shares of Common Stock shall be calculated immediately prior to the close of business on such record date; and (III) If such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series A Preferred Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series A Preferred Conversion Price shall be adjusted pursuant to this Section 5(f) to reflect the actual payment of such dividend or distribution. (G) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE, SUBSTITUTION, REORGANIZATION, MERGER OR CONSOLIDATION. If at any time or from time to time on or after the Original Issue Date the Common Stock issuable upon the conversion of the Series A Preferred is changed into the same or a different number of shares of any class or classes of stock, whether by 7. recapitalization, reclassification, merger, consolidation or otherwise (other than an Acquisition or Asset Transfer as defined in Section 4 or a subdivision or combination of shares or stock dividend provided for elsewhere in this Section 5), in any such event each holder of Series A Preferred shall then have the right to convert such stock into the kind and amount of stock and other securities and property receivable upon such recapitalization, reclassification, merger, consolidation or other change by holders of the maximum number of shares of Common Stock into which such shares of Series A Preferred could have been converted immediately prior to such recapitalization, reclassification, merger, consolidation or change, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the holders of Series A Preferred after the capital reorganization to the end that the provisions of this Section 5 (including adjustment of the Series A Preferred Conversion Price then in effect and the number of shares issuable upon conversion of the Series A Preferred) shall be applicable after that event and be as nearly equivalent as practicable. (H) SALE OF SHARES BELOW SERIES A PREFERRED CONVERSION PRICE. (I) If at any time or from time to time on or after the Original Issue Date the Company issues or sells, or is deemed by the express provisions of this Section 5(h) to have issued or sold, Additional Shares of Common Stock (as defined below), other than as provided in Section 5(e), 5(f) or 5(g) above, for an Effective Price (as defined below) less than the then effective Series A Preferred Conversion Price (a "Qualifying Dilutive Issuance"), then and in each such case, the then existing Series A Preferred Conversion Price shall be reduced, as of the opening of business on the date of such issue or sale, to a price equal to such Effective Price. (II) For the purpose of making any adjustment required under this Section 5(h), the aggregate consideration received by the Company for any issue or sale of securities (the "AGGREGATE CONSIDERATION") shall be defined as: (A) to the extent it consists of cash, be computed at the gross amount of cash received by the Company before deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale and without deduction of any expenses payable by the Company, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board, and (C) if Additional Shares of Common Stock, Convertible Securities (as defined below) or rights or options to purchase either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options. (III) For the purpose of the adjustment required under this Section 5(h), if the Company issues or sells (x) Preferred Stock or other stock, options, warrants, purchase rights or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities being herein referred to as "CONVERTIBLE SECURITIES") or (y) rights 8. or options for the purchase of Additional Shares of Common Stock or Convertible Securities and if the Effective Price of such Additional Shares of Common Stock is less than the Series A Preferred Conversion Price, in each case the Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise or conversion thereof and to have received as consideration for the issuance of such shares an amount equal to the total amount of the consideration, if any, received by the Company for the issuance of such rights or options or Convertible Securities plus: (A) in the case of such rights or options, the minimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options; and (B) in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Company upon the conversion thereof (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities); provided that if the minimum amounts of such consideration cannot be ascertained, but are a function of antidilution or similar protective clauses, the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses. (C) If the minimum amount of consideration payable to the Company upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or on the occurrence or non-occurrence of specified events other than by reason of antidilution adjustments, the Effective Price shall be recalculated using the figure to which such minimum amount of consideration is reduced; provided further, that if the minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities is subsequently increased, the Effective Price shall be again recalculated using the increased minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities. (D) No further adjustment of the Series A Preferred Conversion Price, as adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock or the exercise of any such rights or options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, the Series A Preferred Conversion Price as adjusted upon the issuance of such rights, options or Convertible Securities shall be readjusted to the Series A Preferred Conversion Price which would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the Company for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Company (other than by cancellation of liabilities 9. or obligations evidenced by such Convertible Securities) on the conversion of such Convertible Securities, provided that such readjustment shall not apply to prior conversions of Series A Preferred. (IV) For the purpose of making any adjustment to the Conversion Price of the Series A Preferred required under this Section 5(h), "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of Common Stock issued by the Company or deemed to be issued pursuant to this Section 5(h) (including shares of Common Stock subsequently reacquired or retired by the Company), other than: (A) shares of Common Stock issued upon conversion of the Series A Preferred; (B) shares of Common Stock or Convertible Securities issued after the Original Issue Date to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary that are (i) issued pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board; and (ii) designated as excluded from the definition of "Additional Shares of Common Stock" by the vote or written consent of the holders of a majority of the outstanding shares of Series A Preferred; (C) up to 35,000 shares of Common Stock issued pursuant to the exercise of options with an exercise price of $0.0001 per share that were outstanding on April 26, 2004 and held by members of the Board; (D) shares of Common Stock or Convertible Securities issued pursuant to the exercise of the Initial Bridge Warrants (as defined in the Recapitalization Agreement); and (E) such additional shares of Common Stock or Convertible Securities that are designated as excluded from the definition of "Additional Shares of Common Stock" by the vote or written consent of the holders of a majority of the outstanding shares of Series A Preferred. References to Common Stock in the subsections of this clause (iv) above shall mean all shares of Common Stock issued by the Company or deemed to be issued pursuant to this Section 5(h). The "EFFECTIVE PRICE" of Additional Shares of Common Stock shall mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or deemed to have been issued or sold by the Company under this Section 5(h), into the Aggregate Consideration received, or deemed to have been received by the Company for such issue under this Section 5(h), for such Additional Shares of Common Stock. In the event that the number of shares of Additional Shares of Common Stock or the Effective Price cannot be ascertained at the time of issuance, such Additional Shares of Common Stock shall be deemed issued immediately upon the occurrence of the first event that makes such number of shares or the Effective Price, as applicable, ascertainable. 10. (V) In the event that the Company issues or sells, or is deemed to have issued or sold, Additional Shares of Common Stock in a Qualifying Dilutive Issuance (the "FIRST DILUTIVE ISSUANCE"), then in the event that the Company issues or sells, or is deemed to have issued or sold, Additional Shares of Common Stock in a Qualifying Dilutive Issuance other than the First Dilutive Issuance as a part of the same transaction or series of related transactions as the First Dilutive Issuance (a "SUBSEQUENT DILUTIVE ISSUANCE"), then and in each such case upon a Subsequent Dilutive Issuance the Series A Preferred Conversion Price shall be reduced to the Series A Preferred Conversion Price that would have been in effect had the First Dilutive Issuance and each Subsequent Dilutive Issuance all occurred on the closing date of the First Dilutive Issuance. (I) CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or readjustment of the Series A Preferred Conversion Price for the number of shares of Common Stock or other securities issuable upon conversion of the Series A Preferred, if the Series A Preferred is then convertible pursuant to this Section 5, the Company, at its expense, shall compute such adjustment or readjustment in accordance with the provisions hereof and shall, upon request, prepare a certificate showing such adjustment or readjustment, and shall mail such certificate, by first class mail, postage prepaid, to each registered holder of Series A Preferred so requesting at the holder's address as shown in the Company's books. The certificate shall set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (i) the consideration received or deemed to be received by the Company for any Additional Shares of Common Stock issued or sold or deemed to have been issued or sold, (ii) the Series A Preferred Conversion Price at the time in effect, (iii) the number of Additional Shares of Common Stock and (iv) the type and amount, if any, of other property which at the time would be received upon conversion of the Series A Preferred. Failure to request or provide such notice shall have no effect on any such adjustment. (J) NOTICES OF RECORD DATE. Upon (i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or (ii) any Acquisition (as defined in Section 4) or other capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company with or into any other corporation, or any Asset Transfer (as defined in Section 4), or any voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall mail to each holder of Series A Preferred at least ten (10) days prior to (x) the record date, if any, specified therein; or (y) if no record date is specified, the date upon which such action is to take effect (or, in either case, such shorter period approved by the holders of a majority of the outstanding Series A Preferred) a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (B) the date on which any such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or winding up is expected to become effective, and (C) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or winding up. 11. (K) AUTOMATIC CONVERSION. (I) Each share of Series A Preferred shall automatically be converted into shares of Common Stock, based on the then-effective Series A Preferred Conversion Price, at any time upon the affirmative election of the holders of at least two-thirds of the outstanding shares of the Series A Preferred. Upon such automatic conversion, any declared and unpaid dividends and accrued and unpaid dividends shall be paid in accordance with the provisions of Section 5(d). (II) Upon the occurrence of the event specified in Section 5(k)(i) above, the outstanding shares of Series A Preferred shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series A Preferred are either delivered to the Company or its transfer agent as provided below, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the Series A Preferred, the holders of Series A Preferred shall surrender the certificates representing such shares at the office of the Company or any transfer agent for the Series A Preferred. Thereupon, there shall be issued and delivered to such holder promptly at such office and in its name as shown on such surrendered certificate or certificates, a certificate or certificates for the number of shares of Common Stock into which the shares of Series A Preferred surrendered were convertible on the date on which such automatic conversion occurred, and any declared and unpaid dividends and accrued and unpaid dividends shall be paid in accordance with the provisions of Section 5(d). (L) FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series A Preferred by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Company shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the fair market value of one share of Common Stock (as determined by the Board) on the date of conversion. (M) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series A Preferred. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred, the Company will take such corporate 12. action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. (N) NOTICES. Any notice required by the provisions of this Section 5 shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with verification of receipt. All notices shall be addressed to each holder of record at the address of such holder appearing on the books of the Company. (O) PAYMENT OF TAXES. The Company will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series A Preferred, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series A Preferred so converted were registered. 6. NO REISSUANCE OF SERIES A PREFERRED. No shares or shares of Series A Preferred acquired by the Company by reason of redemption, purchase, conversion or otherwise shall be reissued. 7. AMENDMENTS. This Certificate of Designations may only be amended with the prior written consent of the holders of at least a majority of the outstanding Series A Preferred; provided, however, that Section 5(k)(i) hereof and this Section 7 may only be amended with the prior written consent of the holders of at least two-thirds of the outstanding Series A Preferred. The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of the holders of at least a majority (or, in the case of actions prohibited or required to be performed by Section 5(k)(i) hereof or this Section 7, at least two-thirds) of the outstanding Series A Preferred. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 13. IN WITNESS WHEREOF, the Company has caused this Certificate of Designations to be duly executed as of the 26th day of January, 2005. NORTHWEST BIOTHERAPEUTICS, INC. /s/ Alton L. Boynton ------------------------------------- Name: Alton L. Boynton Title: President 14. EX-3.2 3 v05111exv3w2.txt EXHIBIT 3.2 EXHIBIT 3.2 SECOND AMENDED AND RESTATED BYLAWS OF NORTHWEST BIOTHERAPEUTICS, INC. Adopted January 26, 2005 TABLE OF CONTENTS
PAGE ---- ARTICLE I Offices and Records................................................... 1 Section 1.1 Registered Office and Agent........................................... 1 Section 1.2 Other Offices......................................................... 1 Section 1.3 Books and Records..................................................... 1 ARTICLE II Meetings of Stockholders.............................................. 1 Section 2.1 Annual Meetings....................................................... 1 Section 2.2 Special Meetings...................................................... 2 Section 2.3 Place of Meetings..................................................... 2 Section 2.4 Notice of Meetings.................................................... 2 Section 2.5 Voting List........................................................... 3 Section 2.6 Quorum and Adjournment................................................ 3 Section 2.7 Adjourned Meetings.................................................... 3 Section 2.8 Voting................................................................ 3 Section 2.9 Proxies............................................................... 4 Section 2.10 Record Date........................................................... 5 Section 2.11 Conduct of Meetings; Agenda........................................... 5 Section 2.12 Inspectors of Election; Opening and Closing of Polls.................. 5 Section 2.13 Procedures for Bringing Business before Annual Meetings............... 6 Section 2.14 Action without Meeting................................................ 8 ARTICLE III Board of Directors -- Powers, Number, Classification, Nominations, Classification, Resignations, Removal, Vacancies and Compensation..... 8 Section 3.1 Management............................................................ 8 Section 3.2 Number and Qualification.............................................. 8 Section 3.3 Classes of Directors.................................................. 8 Section 3.4 Election; Term of Office.............................................. 8 Section 3.5 Allocation of Directors Among Classes in the Event of Increases or Decreases in the Number of Directors.................................. 9 Section 3.6 Nominations........................................................... 9 Section 3.7 Resignations.......................................................... 11 Section 3.8 Removal............................................................... 11 Section 3.9 Vacancies............................................................. 11 Section 3.10 Subject to Rights of Holders of Preferred Stock....................... 12 Section 3.11 Compensation.......................................................... 12 ARTICLE IV Board of Directors -- Meetings and Actions............................ 12 Section 4.1 Place of Meetings..................................................... 12 Section 4.2 Regular Meetings...................................................... 12 Section 4.3 Special Meetings...................................................... 12 Section 4.4 Quorum; Voting........................................................ 13
i Section 4.5 Conduct of Meetings................................................... 13 Section 4.6 Presumption of Assent................................................. 13 Section 4.7 Action without M...................................................... 13 Section 4.8 Telephonic Meetings................................................... 13 ARTICLE V Committees of the Board of Directors.................................. 14 Section 5.1 Executive Committee................................................... 14 Section 5.2 Other Committees...................................................... 14 Section 5.3 Term.................................................................. 14 Section 5.4 Committee Changes; Removal............................................ 14 Section 5.5 Alternate Members..................................................... 14 Section 5.6 Rules and Procedures.................................................. 15 Section 5.7 Presumption of Assent................................................. 15 Section 5.8 Action without Meeting................................................ 15 Section 5.9 Telephonic Meetings................................................... 15 Section 5.10 Resignations.......................................................... 16 Section 5.11 Limitations on Authority.............................................. 16 ARTICLE VI Officers.............................................................. 16 Section 6.1 Number; Titles; Qualification; Term of Office......................... 16 Section 6.2 Election.............................................................. 17 Section 6.3 Removal............................................................... 17 Section 6.4 Resignations.......................................................... 17 Section 6.5 Vacancies............................................................. 17 Section 6.6 Salaries.............................................................. 17 Section 6.7 Chairman of the Board................................................. 17 Section 6.8 Chief Executive Officer............................................... 18 Section 6.9 President............................................................. 18 Section 6.10 Chief Scientific Officer.............................................. 18 Section 6.11 Vice Presidents....................................................... 18 Section 6.12 Treasurer............................................................. 19 Section 6.13 Assistant Treasurers.................................................. 19 Section 6.14 Secretary............................................................. 19 Section 6.15 Assistant Secretaries................................................. 19 ARTICLE VII Stock................................................................. 20 Section 7.1 Certificates.......................................................... 20 Section 7.2 Signatures on Certificates............................................ 20 Section 7.3 Legends............................................................... 20 Section 7.4 Lost, Stolen or Destroyed Certificates................................ 20 Section 7.5 Transfers of Shares................................................... 21 Section 7.6 Registered Stockholders............................................... 21 Section 7.7 Regulations........................................................... 21 Section 7.8 Stock Options, Warrants, etc.......................................... 21
ARTICLE VIII Indemnification....................................................... 21 Section 8.1 Third Party Actions................................................... 21 Section 8.2 Actions By or in the Right of the Corporation......................... 22 Section 8.3 Expenses.............................................................. 23 Section 8.4 Non-exclusivity....................................................... 23 Section 8.5 Enforceability........................................................ 23 Section 8.6 Insurance............................................................. 23 Section 8.7 Survival.............................................................. 24 Section 8.8 Amendment............................................................. 24 Section 8.9 Definitions........................................................... 24 ARTICLE IX Notices and Waivers................................................... 24 Section 9.1 Methods of Giving Notices............................................. 24 Section 9.2 Waiver of Notice...................................................... 25 ARTICLE X Miscellaneous Provisions.............................................. 25 Section 10.1 Dividends............................................................. 25 Section 10.2 Reserves.............................................................. 25 Section 10.3 Checks................................................................ 25 Section 10.4 Corporate Contracts and Instruments................................... 25 Section 10.5 Attestation........................................................... 26 Section 10.6 Securities of Other Corporations...................................... 26 Section 10.7 Fiscal Year........................................................... 26 Section 10.8 Seal.................................................................. 26 Section 10.9 Invalid Provisions.................................................... 26 Section 10.10 Headings.............................................................. 26 Section 10.11 References/Gender/Number.............................................. 26 Section 10.12 Amendments............................................................ 26 CERTIFICATE OF SECRETARY.................................................................. 27
AMENDED AND RESTATED BYLAWS OF NORTHWEST BIOTHERAPEUTICS, INC. PREAMBLE These Bylaws are subject to, and governed by, the General Corporation Law of the State of Delaware ("DGCL") and the Certificate of Incorporation ("Certificate of Incorporation") of Northwest Biotherapeutics, Inc. ("Corporation"). In the event of a direct conflict between the provisions of these Bylaws and the mandatory provisions of the DGCL or the provisions of the Certificate of Incorporation, such provisions of the DGCL and the Certificate of Incorporation, as the case may be, will be controlling. ARTICLE I OFFICES AND RECORDS SECTION 1.1 REGISTERED OFFICE AND AGENT. The registered office and registered agent of the Corporation shall be as designated from time to time by the appropriate filing by the Corporation in the office of the Secretary of State of the State of Delaware. SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors of the Corporation ("Board of Directors") may from time to time determine or the business of the Corporation may require. SECTION 1.3 BOOKS AND RECORDS. The books and records of the Corporation may be kept at the Corporation's principal executive office or at such other locations as may from time to time be designated by the Board of Directors. Consents and notices may be received in the form of electronic communications provided that they are reproduced in paper form and delivered to the Corporation's principal executive office unless otherwise provided in the Certificate of Formation or the DGCL. The use of reproductions of consents including, but not limited to copies, faxes, and other reliable reproductions, may be used in lieu of the original writing for any and all purposes for which the original writing could be used, provided the reproduction is a complete reproduction of the entire original writing pursuant to the DGCL. ARTICLE II MEETINGS OF STOCKHOLDERS SECTION 2.1 ANNUAL MEETINGS. An annual meeting of the Corporation's stockholders (the "Stockholders") shall be held each calendar year for the purposes of (i) electing directors as provided in Article III and (ii) transacting such other business as may properly be brought before the meeting. Each annual meeting shall be held on such date (no later than 13 months after the date of the last annual meeting of Stockholders) and at such time as shall be designated by the Board of Directors and stated in the notice or waivers of notice of such meeting. SECTION 2.2 SPECIAL MEETINGS. Special meetings of the Stockholders, for any purpose or purposes, may be called at any time by the Chairman of the Board (if any) or the Chief Executive Officer and shall be called by the Secretary at the written request, or by resolution adopted by the affirmative vote of a majority of the Corporation's directors, which request or resolution shall fix the date, time and place, and state the purpose or purposes, of the proposed meeting. Except as provided by applicable law, these Bylaws, or the Certificate of Incorporation, Stockholders shall not be entitled to call a special meeting of Stockholders or to require the Board of Directors or any officer to call such a meeting or to propose business at such a meeting. Business transacted at any special meeting of Stockholders shall be limited to the purposes stated in the notice or waivers of notice of such meeting. SECTION 2.3 PLACE OF MEETINGS. The Board of Directors may designate the place of meeting (either within or without the State of Delaware) for any meeting of Stockholders. If no designation is made by the Board of Directors, the place of meeting shall be held at the principal executive office of the Corporation. SECTION 2.4 NOTICE OF MEETINGS. (a) Written or electronic notice of each meeting of Stockholders shall be delivered to each Stockholder of record entitled to vote thereat, which notice shall (i) state the place, date and time of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called and (ii) be given not less than 10 nor more than 60 days before the date of the meeting. (b) Each notice of a meeting of Stockholders shall be given as provided in Section 9.1, except that if no address appears on the Corporation's books or stock transfer records with respect to any Stockholder, notice to such Stockholder shall be deemed to have been given if sent by first-class mail or telecommunication to the Corporation's principal executive office or if published at least once in a newspaper of general circulation in the county where such principal executive office is located. (c) If any notice addressed to a Stockholder at the address of such Stockholder appearing on the books of the Corporation is returned to the Corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the Stockholder at such address, all further notices to such Stockholder at such address shall be deemed to have been duly given without further mailing if the same shall be available to such Stockholder upon written demand of such Stockholder at the principal executive office of the Corporation for a period of one year from the date of the giving of such notice. (d) Any previously scheduled meeting of the Stockholders may be postponed by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting. SECTION 2.5 VOTING LIST. At least 10 days before each meeting of Stockholders, the Secretary or other officer or agent of the Corporation who has charge of the Corporation's stock ledger shall prepare a complete list of the Stockholders entitled to vote at such meeting, arranged in alphabetical order and showing, with respect to each Stockholder, his address and the number of shares registered in his name. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice or waivers of notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept open at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the Stockholders entitled to examine any list required by this Section 2.5 or to vote at any meeting of Stockholders. SECTION 2.6 QUORUM AND ADJOURNMENT. The holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), present in person or by proxy, shall constitute a quorum at any meeting of Stockholders, except as otherwise provided by applicable law, the Certificate of Incorporation, or these Bylaws. If a quorum is present at any meeting of Stockholders, such quorum shall not be broken by the withdrawal of enough Stockholders to leave less than a quorum and the remaining Stockholders may continue to transact business until adjournment. If a quorum shall not be present at any meeting of Stockholders, the holders of a majority of the voting stock represented at such meeting or, if no Stockholder entitled to vote is present at such meeting, any officer of the Corporation may adjourn such meeting from time to time until a quorum shall be present. Notwithstanding anything in these Bylaws to the contrary, the chairman of any meeting of Stockholders shall have the right, acting in his sole discretion, to adjourn such meeting from time to time. SECTION 2.7 ADJOURNED MEETINGS. When a meeting of Stockholders is adjourned to another time or place, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken; provided, however, if an adjournment is for more than 30 days or if after an adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder entitled to vote thereat. At any adjourned meeting at which a quorum shall be present in person or by proxy, the Stockholders entitled to vote thereat may transact any business which might have been transacted at the meeting as originally noticed. SECTION 2.8 VOTING. (a) Election of directors at all meetings of Stockholders at which directors are to be elected shall be by written ballot or electronic communications and, except as otherwise provided in the Certificate of Incorporation, a plurality of the votes cast thereat shall elect. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, all matters other than the election of directors submitted to the Stockholders at any meeting shall be decided by a majority of the votes cast with respect to such matter. Except as otherwise provided in the Certificate of Incorporation or by applicable law, (i) no Stockholder shall have any right of cumulative voting and (ii) each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of Stockholders. (b) Shares standing in the name of another corporation (whether domestic or foreign) may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe or, in the absence of such provision, as the board of directors of such corporation may determine. Shares standing in the name of a deceased person may be voted by the executor or administrator of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by proxy, but no fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares standing in the name of a receiver may be voted by such receiver. A Stockholder whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the Corporation he has expressly empowered the pledgee to vote thereon, in which case only the pledgee (or his proxy) may represent the stock and vote thereon. (c) If shares or other securities having voting power stand of record in the name of two or more persons (whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise) or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (i) if only one votes, his act binds all; (ii) if more than one votes, the act of the majority so voting binds all; and (iii) if more than one votes but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionately or any person voting the shares, or a beneficiary, (if any) may apply to the Delaware Court of Chancery or such other court as may have jurisdiction to appoint an additional person to act with the person so voting the shares, which shall then be voted as determined by a majority such persons and the person so appointed by the court. If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of the paragraph (c) shall be a majority or even-split in interest. SECTION 2.9 PROXIES. (a) At any meeting of Stockholders, each Stockholder having the right to vote thereat may be represented and vote either in person or by proxy executed in writing by such Stockholder or by his duly authorized attorney-in-fact. Each such proxy shall be filed with the Secretary of the Corporation at or before the beginning of each meeting at which such proxy is to be voted. Unless otherwise provided therein, no proxy shall be valid after three years from the date of its execution. Each proxy shall be revocable unless expressly provided therein to be irrevocable and coupled with an interest sufficient in law to support an irrevocable power or unless otherwise made irrevocable by applicable law. (b) A proxy shall be deemed signed if the Stockholder's name is placed on the proxy (whether by manual signature, telegraphic transmission or otherwise) by the Stockholder or his attorney-in-fact. In the event any proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting (or, if only one shall be present, then that one) shall have and may exercise all the powers conferred by the proxy upon all the persons so designated unless the proxy shall otherwise provide. (c) Except as otherwise provided by applicable law, by the Certificate of Incorporation or by these Bylaws, the Board of Directors may, in advance of any meeting of Stockholders, prescribe additional regulations concerning the manner of execution and filing of proxies (and the validation of same) which may be voted at such meeting. SECTION 2.10 RECORD DATE. For the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders (or any adjournment thereof) or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors or be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action. If no record date is fixed, (i) the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held and (ii) the record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of Stockholders of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. SECTION 2.11 CONDUCT OF MEETINGS; AGENDA. (a) Meetings of the Stockholders shall be presided over by the officer of the Corporation whose duties under these Bylaws require him to do so; provided, however, if no such officer of the Corporation shall be present at any meeting of Stockholders, such meeting shall be presided over by a chairman to be chosen by a majority of the Stockholders entitled to vote at the meeting who are present in person or by proxy. At each meeting of Stockholders, the officer of the Corporation whose duties under these Bylaws require him to do so shall act as secretary of the meeting; provided, however, if no such officer of the Corporation shall be present at any meeting of Stockholders, the chairman of such meeting shall appoint a secretary. The order of business at each meeting of Stockholders shall be as determined by the chairman of the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him in order. (b) The Board of Directors may, in advance of any meeting of Stockholders, adopt an agenda for such meeting, adherence to which the chairman of the meeting may enforce. SECTION 2.12 INSPECTORS OF ELECTION; OPENING AND CLOSING OF POLLS. (a) Before any meeting of Stockholders, the Board of Directors may, and if required by law shall, appoint one or more persons to act as inspectors of election at such meeting or any adjournment thereof. If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the meeting may, and if required by law or requested by any Stockholder entitled to vote or his proxy shall, appoint a substitute inspector. If no inspectors are appointed by the Board of Directors, the chairman of the meeting may, and if required by law or requested by any Stockholder entitled to vote or his proxy shall, appoint one or more inspectors at the meeting. Notwithstanding the foregoing, inspectors shall be appointed consistent with the mandatory provisions of Section 231 of the DGCL. (b) Inspectors may include individuals who serve the Corporation in other capacities (including as officers, employees, agents or representatives); provided, however, that no director or candidate for the office of director shall act as an inspector. Inspectors need not be Stockholders. (c) The inspectors shall (i) determine the number of shares of capital stock of the Corporation outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum and the validity and effect of proxies and (ii) receive votes or ballots, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes and ballots, determine the results and do such acts as are proper to conduct the election or vote with fairness to all Stockholders. On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. The inspectors shall have such other duties as may be prescribed by Section 231 of the DGCL. (d) The chairman of the meeting may, and if required by the DGCL shall, fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at the meeting. SECTION 2.13 PROCEDURES FOR BRINGING BUSINESS BEFORE ANNUAL MEETINGS. (a) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting of Stockholders except in accordance with the procedures hereinafter set forth in this Section 2.13; provided, however, that nothing in this Section 2.13 shall be deemed to preclude discussion by any Stockholder of any business properly brought before any annual meeting of Stockholders in accordance with such procedures. (b) At any annual meeting of Stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (iii) properly brought before the meeting by a Stockholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a Stockholder, the Stockholder must have given timely notice thereof in writing to the Secretary. To be timely, a Stockholder's notice must be delivered to or mailed and received at the principal executive office of the Corporation not less than 120 days nor more than 150 days in advance of the first anniversary of the date of the Corporation's proxy statement released to Stockholders in connection with the previous year's annual meeting of Stockholders; provided, however, that if no annual meeting was held in the previous year or the date of the annual meeting of Stockholders has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, the notice must be received by the Corporation at least 80 days prior to the date the Corporation intends to distribute its proxy statement with respect to such meeting. Any meeting of Stockholders which is adjourned and will reconvene within 30 days after the meeting date as originally noticed shall, for purposes of any Stockholder's notice contemplated by this paragraph (b), be deemed to be a continuation of the original meeting, and no business may be brought before such adjourned meeting by any Stockholder unless timely notice of such business was given to the Secretary of the Corporation for the meeting as originally noticed. (c) Each notice given by a Stockholder as contemplated by paragraph (b) above shall set forth, as to each matter the Stockholder proposes to bring before the annual meeting, (i) the nature of the proposed business with reasonable particularity, including the exact text of any proposal to be presented for adoption and any supporting statement, which proposal and supporting statement shall not in the aggregate exceed 500 words, and his reasons for conducting such business at the annual meeting, (ii) any material interest of the Stockholder in such business, (iii) the name, principal occupation and record address of the Stockholder, (iv) the class and number of shares of the Corporation which are held of record or beneficially owned by the Stockholder, (v) the dates upon which the Stockholder acquired such shares of stock and documentary support for any claims of beneficial ownership and (vi) such other matters as may be required by the Certificate of Incorporation. (d) The foregoing right of a Stockholder to propose business for consideration at an annual meeting of Stockholders shall be subject to such conditions, restrictions and limitations as may be imposed by the Certificate of Incorporation. Nothing in this Section 2.13 shall entitle any Stockholder to propose business for consideration at any special meeting of Stockholders. (e) The chairman of any meeting of Stockholders shall determine whether business has been properly brought before the meeting and, if the facts so warrant, may refuse to transact any business at such meeting which has not been properly brought before the meeting. (f) Notwithstanding any other provision of these Bylaws, the Corporation shall be under no obligation to include any Stockholder proposal in its proxy statement or otherwise present any such proposal to Stockholders at a meeting of Stockholders if the Board of Directors reasonably believes that the proponents thereof have not complied with Sections 13 and 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder, and the Corporation shall not be required to include in its proxy statement to Stockholders any Stockholder proposal not required to be included in its proxy statement to Stockholders in accordance with the Exchange Act and such rules or regulations. (g) Nothing in this Section 2.13 shall be deemed to affect any rights of Stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 of the Exchange Act. (h) Reference is made to Section 3.4 for procedures relating to the nomination of any person for election or reelection as a director of the Corporation. SECTION 2.14 ACTION WITHOUT MEETING. No action shall be taken by Stockholders except at a meeting of Stockholders. Stockholders may not act by written consent in lieu of a meeting. ARTICLE III BOARD OF DIRECTORS -- POWERS, NUMBER, CLASSIFICATION, NOMINATIONS, RESIGNATIONS, REMOVAL, VACANCIES AND COMPENSATION SECTION 3.1 MANAGEMENT. The business and property of the Corporation shall be managed by and under the direction of the Board of Directors. In addition to the powers and authorities expressly conferred upon the Board of Directors by these Bylaws, the Board of Directors may exercise all the powers of the Corporation and do all such lawful acts and things as are not by law, by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the Stockholders. SECTION 3.2 NUMBER AND QUALIFICATION. The number of directors shall be fixed from time to time exclusively pursuant to resolution adopted by a majority of the Corporation's directors, but shall consist of not less than one nor more than seven directors, subject, however, to increases above seven members as may be required in order to permit the holders of any series of preferred stock of the Corporation to elect directors under specified circumstances. The directors need not be Stockholders or residents of the State of Delaware. Each director must have attained 21 years of age. SECTION 3.3 CLASSES OF DIRECTORS. The Board of Directors shall be divided into three classes designated as Class I, Class II and Class III, respectively, all as nearly equal in number as possible, with each director then in office receiving the classification to be determined with respect to such director by the Board of Directors. SECTION 3.4 ELECTION; TERM OF OFFICE. (a) The initial term of office of Class I directors shall expire at the annual meeting of the Corporation's Stockholders in 2002. The initial term of office of Class II directors shall expire at the annual meeting of Stockholders in 2003. The initial term of office of Class III directors shall expire at the annual meeting of Stockholders in 2004. Subject to Sections 3.9 and 3.10, each director elected at an annual meeting of Stockholders to succeed a director whose term is expiring shall hold office until the third annual meeting of Stockholders after his election and until his successor is elected and qualified or until his earlier death, resignation or removal. (b) Directors shall be elected by Stockholders only at annual meetings of Stockholders, except that if any such annual meeting is not held or if any director to be elected thereat is not elected, such director may be elected at any special meeting of Stockholders held for that purpose. (c) No decrease in the number of directors constituting the Board of Directors shall have the effect of shortening the term of any incumbent director. SECTION 3.5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease in the authorized number of directors, (i) each director then serving as such shall nevertheless continue as a director of the class of which he is a member and (ii) the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board of Directors among the three classes of directors so as to ensure that no one class has more than one director more than any other class. To the extent possible, consistent with the foregoing rule, any newly created directorships shall be added to those classes whose terms of office are to expire at the latest dates following such allocation, and any newly eliminated directorships shall be subtracted from those classes whose terms of office are to expire at the earliest dates following such allocation, unless otherwise provided from time to time by resolution adopted by the Board of Directors. SECTION 3.6 NOMINATIONS. (a) Notwithstanding anything in these Bylaws to the contrary, only persons who are nominated in accordance with the procedures hereinafter set forth in this Section 3.6 shall be eligible for election as directors of the Corporation. (b) Nominations of persons for election to the Board of Directors at a meeting of Stockholders may be made only (i) by or at the direction of the Board of Directors or (ii) by any Stockholder entitled to vote for the election of directors at the meeting who satisfies the eligibility requirements (if any) set forth in the Certificate of Incorporation and who complies with the notice procedures set forth in this Section 3.6 and in the Certificate of Incorporation; provided, however, Stockholders may not nominate persons for election to the Board of Directors at any special meeting of Stockholders unless the business to be transacted at such special meeting, as set forth in the notice of such meeting, includes the election of directors. Nominations by Stockholders shall be made pursuant to timely notice in writing to the Secretary. To be timely, a Stockholder's notice given in the context of an annual meeting of Stockholders shall be delivered to or mailed and received at the principal executive office of the Corporation not less than 120 days nor more than 150 days in advance of the first anniversary of the date of the Corporation's proxy statement released to Stockholders in connection with the previous year's annual meeting of Stockholders; provided, however, that if no annual meeting was held in the previous year or the date of the annual meeting of Stockholders has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, the notice must be received by the Corporation at least 80 days prior to the date the Corporation intends to distribute its proxy statement with respect to such meeting. To be timely, a Stockholder's notice given in the context of a special meeting of Stockholders shall be delivered to or mailed and received at the principal executive office of the Corporation not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such special meeting. For purposes of the foregoing, "public announcement" means the disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service, or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. Any meeting of Stockholders which is adjourned and will reconvene within 30 days after the meeting date as originally noticed shall, for purposes of any notice contemplated by this paragraph (b), be deemed to be a continuation of the original meeting and no nominations by a Stockholder of persons to be elected directors of the Corporation may be made at any such reconvened meeting other than pursuant to a notice that was timely for the meeting on the date originally noticed. (c) Each notice given by a Stockholder as contemplated by paragraph (b) above shall set forth the following information, in addition to any other information or matters required by the Certificate of Incorporation: (i) as to each person whom the Stockholder proposes to nominate for election or re-election as a director, (A) the exact name of such person, (B) such person's age, principal occupation, business address and telephone number and residence address and telephone number, (C) the number of shares (if any) of each class of stock of the Corporation owned directly or indirectly by such person and (D) all other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act or any successor regulation thereto (including such person's notarized written acceptance of such nomination, consent to being named in the proxy statement as a nominee and statement of intention to serve as a director if elected); (ii) as to the Stockholder giving the notice, (A) his name and address, as they appear on the Corporation's books, (B) his principal occupation, business address and telephone number and residence address and telephone number, (C) the class and number of shares of the Corporation which are held of record or beneficially owned by him and (D) the dates upon which he acquired such shares of stock and documentary support for any claims of beneficial ownership; and (iii) a description of all arrangements or understandings between the Stockholder giving the notice and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such Stockholder. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation that information required to be set forth in a Stockholder's notice of nomination which pertains to the nominee. (d) The foregoing right of a Stockholder to nominate a person for election or reelection to the Board of Directors shall be subject to such conditions, restrictions and limitations as may be imposed by the Certificate of Incorporation. (e) Nothing in this Section 3.6 shall be deemed to affect any rights of Stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 of the Exchange Act. (f) The chairman of a meeting of Stockholders shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in this Section 3.6 and, if any nomination is not in compliance with this Section 3.6, to declare that such defective nomination shall be disregarded. SECTION 3.7 RESIGNATIONS. Any director may resign at any time by giving notice, either written or by electronic communications, to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office for the unexpired portion of the term of the director whose place shall be vacated and until his successor shall have been duly elected and qualified. SECTION 3.8 REMOVAL. No director may be removed before the expiration of his term of office except for cause and then only by the affirmative vote of the holders of not less than a majority of the voting power of all outstanding Voting Stock, voting together as a single class. The Board of Directors may not remove any director, and no recommendation by the Board of Directors that a director be removed may be made to the Stockholders unless such recommendation is set forth in a resolution adopted by the affirmative vote of not less than 66-2/3% of the directors. SECTION 3.9 VACANCIES. (a) In case any vacancy shall occur on the Board of Directors because of death, resignation or removal, such vacancy may be filled by a majority of the directors remaining in office (though less than a quorum) or by the sole remaining director. The director so appointed shall serve for the unexpired term of his predecessor or until his successor is elected and qualified or until his earlier death, resignation or removal. If there are no directors then in office, an election of directors may be held in the manner provided by applicable law. (b) Any newly-created directorship resulting from any increase in the number of authorized directors may be filled by a majority of the directors then in office (though less than a quorum), or by the sole remaining director. The director so appointed shall be assigned to such class of directors as such majority of directors, or the sole remaining director, as the case may be, shall determine; provided however, that newly-created directorships shall be apportioned among the classes of directors so that all classes will be as nearly equal in number as possible. Each director so appointed shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. (c) Except as expressly provided in these Bylaws or the Certificate of Incorporation or as otherwise provided by law, Stockholders shall not have any right to fill vacancies on the Board of Directors, including newly-created directorships. (d) If, as a result of a disaster or emergency (as determined in good faith by the then remaining directors), it becomes impossible to ascertain whether or not vacancies exist on the Board of Directors, and a person is, or persons are, elected by the directors, who in good faith believe themselves to be a majority of the remaining directors, or the sole remaining director, to fill a vacancy or vacancies that such remaining directors in good faith believe exists, then the acts of such person or persons who are so elected as directors shall be valid and binding upon the Corporation and the Stockholders, although it may subsequently develop that at the time of the election (i) there was in fact no vacancy or vacancies existing on the Board of Directors or (ii) the directors, or the sole remaining director, who so elected such person or persons did not in fact constitute a majority of the remaining directors. SECTION 3.10 SUBJECT TO RIGHTS OF HOLDERS OF PREFERRED STOCK. Notwithstanding the foregoing provisions of this Article III, if the resolutions of the Board of Directors creating any series of preferred stock of the Corporation entitle the holders of such preferred stock, voting separately by series, to elect additional directors under specified circumstances, then all provisions of such resolutions relating to the nomination, election, term of office, removal, filling of vacancies and other features of such directorships shall, as to such directorships, govern and control over any conflicting provisions of this Article III. SECTION 3.11 COMPENSATION. The Board of Directors shall have the authority to fix, and from time to time to change, the compensation of directors. Each director shall be entitled to reimbursement from the Corporation for his reasonable expenses incurred in attending meetings of the Board of Directors (or any committee thereof) and meetings of the Stockholders. Nothing contained in these Bylaws shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV BOARD OF DIRECTORS -- MEETINGS AND ACTIONS SECTION 4.1 PLACE OF MEETINGS. The directors may hold their meetings and have one or more offices, and keep the books of the Corporation, in such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine. SECTION 4.2 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such time and place, within or without the State of Delaware, as shall from time to time be determined by the Board of Directors. Except as otherwise provided by applicable law, any business may be transacted at any regular meeting of the Board of Directors. SECTION 4.3 SPECIAL MEETINGS. Special meetings of the Board of Directors shall be called by the Secretary at the request of the Chairman of the Board (if any) or the Chief Executive Officer on not less than 24 hours' notice to each director, specifying the time, place and purpose of the meeting. Special meetings shall be called by the Secretary on like notice at the request, in writing or by electronic communication, of any two directors, which request shall state the purpose of the meeting. SECTION 4.4 QUORUM; VOTING. (a) At all meetings of the Board of Directors, a majority of the directors shall be necessary and sufficient to constitute a quorum for the transaction of business. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time (without notice other than announcement at the meeting) until a quorum shall be present. A meeting of the Board of Directors at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors; provided, however, that no action of the remaining directors shall constitute the act of the Board of Directors unless the action is approved by at least a majority of the required quorum for the meeting or such greater number of directors as shall be required by applicable law, by the Certificate of Incorporation or by these Bylaws. (b) The act of a majority of the directors present at any meeting of the Board of Directors at which there is a quorum shall be the act of the Board of Directors unless, by express provision of law, the Certificate of Incorporation, or these Bylaws, a different vote is required, in which case such express provision shall govern and control. SECTION 4.5 CONDUCT OF MEETINGS. At meetings of the Board of Directors, business shall be transacted in such order as shall be determined by the chairman of the meeting unless the Board of Directors shall otherwise determine the order of business. The Board of Directors shall keep regular minutes of its proceedings which shall be placed in the minute book of the Corporation. SECTION 4.6 PRESUMPTION OF ASSENT. A director who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to such action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his dissent, either in writing or by electronic communication, to such action with the person acting as secretary of the meeting before the adjournment thereof or shall forward any dissent by certified or registered mail to the Secretary immediately after the adjournment of the meeting. Such right to dissent shall not apply to any director who voted in favor of such action. SECTION 4.7 ACTION WITHOUT MEETING. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all directors consent thereto in writing. All such written consents shall be filed with the minutes of proceedings of the Board of Directors. SECTION 4.8 TELEPHONIC MEETINGS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. ARTICLE V COMMITTEES OF THE BOARD OF DIRECTORS SECTION 5.1 EXECUTIVE COMMITTEE. (a) The Board of Directors may, by resolution adopted by the affirmative vote of a majority of the directors, designate an Executive Committee which, during the intervals between meetings of the Board of Directors and subject to Section 5.11, shall have and may exercise, in such manner as it shall deem to be in the best interests of the Corporation, all of the powers of the Board of Directors in the management or direction of the business and affairs of the Corporation, except as reserved to the Board of Directors or as delegated by the Board of Directors to another committee of the Board of Directors or as may be prohibited by law. The Executive Committee shall consist of not less than two directors, the exact number to be determined from time to time by the affirmative vote of a majority of the directors. None of the members of the Executive Committee need be an officer of the Corporation. (b) Meetings of the Executive Committee may be called at any time by the Chairman of the Board (if any) or the Chief Executive Officer on not less than one day's notice to each member given verbally or in writing, which notice shall specify the time, place and purpose of the meeting. SECTION 5.2 OTHER COMMITTEES. The Board of Directors may, by resolution adopted by a majority of the directors, establish additional standing or special committees of the Board of Directors, each of which shall consist of two or more directors (the exact number to be determined from time to time by the Board of Directors) and, subject to Section 5.11, shall have such powers and functions as may be delegated to it by the Board of Directors. No member of any such additional committee need be an officer of the Corporation. SECTION 5.3 TERM. Each member of a committee of the Board of Directors shall serve as such until the earliest of (i) his death, (ii) the expiration of his term as a director, (iii) his resignation as a member of such committee or as a director and (iv) his removal as a member of such committee or as a director. SECTION 5.4 COMMITTEE CHANGES; REMOVAL. The Board of Directors shall have the power at any time to fill vacancies in, to change the membership of, and to abolish any committee of the Board of Directors; provided, however, that no such action shall be taken in respect of the Executive Committee unless approved by a majority of the directors. SECTION 5.5 ALTERNATE MEMBERS. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If no alternate members have been so appointed or each such alternate committee member is absent or disqualified, the committee member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. SECTION 5.6 RULES AND PROCEDURES. (a) The Board of Directors may designate one member of each committee as chairman of such committee; provided, however, that, except as provided in the following sentence, no person shall be designated as chairman of the Executive Committee unless approved by a majority of the directors. If a chairman is not so designated for any committee, the members thereof shall designate a chairman. (b) Each committee shall adopt its own rules (not inconsistent with these Bylaws or with any specific direction as to the conduct of its affairs as shall have been given by the Board of Directors) governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules. (c) If a committee is comprised of an odd number of members, a quorum shall consist of a majority of that number. If a committee is comprised of an even number of members, a quorum shall consist of one-half of that number. If a committee is comprised of two members, a quorum shall consist of both members. If a quorum is not present at a meeting of any committee, a majority of the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. The act of a majority of the members present at any meeting at which a quorum is in attendance shall be the act of a committee, unless the act of a greater number is required by law, the Certificate of Incorporation, these Bylaws or the committee's rules as adopted in Section 5.6(b). (d) Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when requested. (e) Unless otherwise provided by these Bylaws or by the rules adopted by any committee, notice of the time and place of each meeting of such committee shall be given to each member of such committee as provided in these Bylaws with respect to notices of special meetings of the Board of Directors. SECTION 5.7 PRESUMPTION OF ASSENT. A member of a committee of the Board of Directors who is present at a meeting of such committee at which action on any corporate matter is taken shall be presumed to have assented to such action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his dissent, in writing or by electronic communication, to such action with the person acting as secretary of the meeting before the adjournment thereof or shall forward any dissent by certified or registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action. SECTION 5.8 ACTION WITHOUT MEETING. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting if all members of such committee consent thereto in writing or by electronic communication. All such consents shall be filed with the minutes of proceedings of such committee. SECTION 5.9 TELEPHONIC MEETINGS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of any committee of the Board of Directors may participate in a meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. SECTION 5.10 RESIGNATIONS. Any committee member may resign at any time by giving notice, in writing or by electronic communication, to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. SECTION 5.11 LIMITATIONS ON AUTHORITY. Unless otherwise provided in the Certificate of Incorporation, no committee of the Board of Directors shall have the power or authority to (i) authorize an amendment to the Certificate of Incorporation, (ii) adopt an agreement of merger or consolidation, recommend to the Stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, (iii) recommend to the Stockholders a dissolution of the Corporation or a revocation of a dissolution, (iv) amend these Bylaws, (v) declare a dividend or other distribution on, or authorize the issuance, purchase or redemption of, securities of the Corporation, (vi) elect any officer of the Corporation or (vii) approve any material transaction between the Corporation and one or more of its directors, officers or employees or between the Corporation and any corporation, partnership, association or other organization in which one or more of its directors, officers or employees are directors or officers or have a financial interest; provided, however, that the Executive Committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of preferred stock adopted by the Board of Directors as provided in the Certificate of Incorporation, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the decrease or increase of the shares of any such series. ARTICLE VI OFFICERS SECTION 6.1 NUMBER; TITLES; QUALIFICATION; TERM OF OFFICE. (a) The officers of the Corporation shall be a Chief Executive Officer, a President, a Chief Scientific Officer, a Secretary and a Treasurer. The Board of Directors from time to time may also elect such other officers (including, without limitation, a Chairman of the Board, Chief Financial Officer and one or more Vice Presidents) as the Board of Directors deems appropriate or necessary. Each officer shall hold office until his successor shall have been duly elected and shall have been qualified or until his earlier death, resignation or removal. Any two or more offices may be held by the same person, but no officer shall execute any instrument in more than one capacity if such instrument is required by law or any act of the Corporation to be executed or countersigned by two or more officers. None of the officers need be a Stockholder or a resident of the State of Delaware. No officer (other than the Chairman of the Board, if any) need be a director. (b) The Board of Directors may delegate to the Chairman of the Board (if any) and/or the Chief Executive Officer the power to appoint one or more employees of the Corporation as divisional or departmental vice presidents and fix their duties as such appointees. However, no such divisional or departmental vice presidents shall be considered an officer of the Corporation, the officers of the Corporation being limited to those officers elected by the Board of Directors. SECTION 6.2 ELECTION. At the first meeting of the Board of Directors after each annual meeting of Stockholders at which a quorum shall be present, the Board of Directors shall elect the officers of the Corporation. SECTION 6.3 REMOVAL. Any officer may be removed, either with or without cause, by the Board of Directors; provided, however, that (i) the Chairman of the Board (if any) and the Chief Executive Officer may be removed only by the affirmative vote of a majority of the directors and (ii) the removal of any officer shall be without prejudice to the contract rights, if any, of such officer. Election or appointment of an officer shall not of itself create contract rights. SECTION 6.4 RESIGNATIONS. Any officer may resign at any time by giving notice, in writing or by electronic communication, to the Board of Directors, the Chairman of the Board (if any) or the Chief Executive Officer. Any such resignation shall take effect on receipt of such notice or at any later time specified therein. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any such resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. SECTION 6.5 VACANCIES. If a vacancy shall occur in any office because of death, resignation, removal, disqualification or any other cause, the Board of Directors may elect or appoint a successor to fill such vacancy for the remainder of the term. SECTION 6.6 SALARIES. The salaries of all officers of the Corporation shall be fixed by the Board of Directors or pursuant to its direction, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 6.7 CHAIRMAN OF THE BOARD. The Chairman of the Board (if any) shall have all powers and shall perform all duties incident to the office of Chairman of the Board and such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. The Chairman of the Board, if present, shall preside at all meetings of the Board of Directors and of the Stockholders. During the time of any vacancy in the office of Chief Executive Officer or in the event of the absence or disability of the Chief Executive Officer, the Chairman of the Board shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.7 for the exercise by the Chairman of the Board of the powers of the Chief Executive Officer. SECTION 6.8 CHIEF EXECUTIVE OFFICER. (a) The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors, shall have general supervision, direction and control of the business and officers of the Corporation with all such powers as may be reasonably incident to such responsibilities. He shall have the general powers and duties of management usually vested in the chief executive officer of a corporation. (b) During the time of any vacancy in the office of the Chairman of the Board or in the event of the absence or disability of the Chairman of the Board, the Chief Executive Officer shall have the duties and powers of the Chairman of the Board unless otherwise determined by the Board of Directors. During the time of any vacancy in the office of President or in the event of the absence or disability of the President, the Chief Executive Officer shall have the duties and powers of the President unless otherwise determined by the Board of Directors. In no event shall any third party having any dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.8 for the exercise by the Chief Executive Officer of the powers of the Chairman of the Board or the President. SECTION 6.9 PRESIDENT. (a) The President shall be the chief operating officer of the Corporation and, subject to the supervision, direction and control of the Chief Executive Officer and the Board of Directors, shall manage the day-to-day operations of the Corporation. He shall have the general powers and duties of management usually vested in the chief operating officer of a corporation and such other powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or these Bylaws. (b) During the time of any vacancy in the offices of the Chairman of the Board and Chief Executive Officer or in the event of the absence or disability of the Chairman of the Board and the Chief Executive Officer, the President shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. In no event shall any third party having any dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.9 for the exercise by the President of the powers the Chief Executive Officer. SECTION 6.10 CHIEF SCIENTIFIC OFFICER. The Chief Scientific Officer shall be the chief scientific officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors and President, shall have general supervision, direction and control of the Corporation's scientific endeavors with all such powers as may be reasonably incident to such responsibilities. He shall have the general powers and duties of management usually vested in the chief scientific officer of a corporation. SECTION 6.11 VICE PRESIDENTS. In the absence or disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the President, shall perform all the duties of the President as chief operating officer of the Corporation, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President as chief operating officer of the Corporation. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.11 for the exercise by any Vice President of the powers of the President as chief operating officer of the Corporation. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer or the President. SECTION 6.12 TREASURER. The Treasurer shall (i) have custody of the Corporation's funds and securities, (ii) keep full and accurate account of receipts and disbursements, (iii) deposit all monies and valuable effects in the name and to the credit of the Corporation in such depository or depositories as may be designated by the Board of Directors and (iv) perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer. SECTION 6.13 ASSISTANT TREASURERS. Each Assistant Treasurer shall have such powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or the President. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the President (or, in the absence of such designation, the Treasurer) shall perform the duties and exercise the powers of the Treasurer during the period of such absence or disability. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.13 for the exercise by any Assistant Treasurer of the powers of the Treasurer under these Bylaws. SECTION 6.14 SECRETARY. (a) The Secretary shall keep or cause to be kept, at the principal office of the Corporation or such other place as the Board of Directors may order, a book of minutes of all meetings and actions of the Board of Directors, committees of the Board of Directors and Stockholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at meetings of the Board of Directors and committees thereof, the number of shares present or represented at Stockholders' meetings and the proceedings thereof. (b) The Secretary shall keep, or cause to be kept, at the principal office of the Corporation or at the office of the Corporation's transfer agent or registrar, a share register, or a duplicate share register, showing the names of all Stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same and the number and date of cancellation of every certificate surrendered for cancellation. (c) The Secretary shall give, or cause to be given, notice of all meetings of the Stockholders and of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the seal of the Corporation, if one be adopted, in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board (if any), the Chief Executive Officer, the President or these Bylaws. (d) The Secretary may affix the seal of the Corporation, if one be adopted, to contracts of the Corporation. SECTION 6.15 ASSISTANT SECRETARIES. Each Assistant Secretary shall have such powers and duties as may be assigned to him by the Board of Directors, the Chairman of the Board (if any), the Chief Executive Officer or the President. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the President (or, in the absence of such designation, the Secretary) shall perform the duties and exercise the powers of the Secretary during the period of such absence or disability. In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 6.15 for the exercise by any Assistant Secretary of the powers of the Secretary under these Bylaws. ARTICLE VII STOCK SECTION 7.1 CERTIFICATES. Certificates for shares of stock of the Corporation shall be in such form as shall be approved by the Board of Directors. The certificates shall be signed (i) by the Chairman of the Board (if any), the Chief Executive Officer, the President or a Vice President and (ii) by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. SECTION 7.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures on the certificates may be a facsimile and the seal of the Corporation (or a facsimile thereof), if one has been adopted, may be affixed thereto. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon, a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. SECTION 7.3 LEGENDS. The Board of Directors shall have the power and authority to provide that certificates representing shares of stock of the Corporation bear such legends and statements (including, without limitation, statements relating to the powers, designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of the shares represented by such certificates) as the Board of Directors deems appropriate in connection with the requirements of federal or state securities laws or other applicable laws. SECTION 7.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors, the Secretary and the Treasurer each may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, in each case upon the making of an affidavit of that fact by the owner of such certificate, or his legal representative. When authorizing such issue of a new certificate or certificates, the Board of Directors, the Secretary or the Treasurer, as the case may be, may, in its or his discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as the Board of Directors, the Secretary or the Treasurer, as the case may be, shall require and/or to furnish the Corporation a bond in such form and substance and with such surety as the Board of Directors, the Secretary or the Treasurer, as the case may be, may direct as indemnity against any claim, or expense resulting from any claim, that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. SECTION 7.5 TRANSFERS OF SHARES. Shares of stock of the Corporation shall be transferable only on the books of the Corporation by the holders thereof in person or by their duly authorized attorneys or legal representatives. Upon surrender to the Corporation, or the transfer agent of the Corporation, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation or its transfer agent shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon the Corporation's books. SECTION 7.6 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat the holder of record of any share of stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim or interest in such share on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as expressly provided by the laws of the State of Delaware. SECTION 7.7 REGULATIONS. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement of certificates for shares of stock of the Corporation. The Board of Directors may (i) appoint and remove transfer agents and registrars of transfers and (ii) require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. SECTION 7.8 STOCK OPTIONS, WARRANTS, ETC. Unless otherwise expressly prohibited in the resolutions of the Board of Directors creating any class or series of preferred stock of the Corporation, the Board of Directors shall have the power and authority to create and issue (whether or not in connection with the issue and sale of any stock or other securities of the Corporation) warrants, rights or options entitling the holders thereof to purchase from the Corporation any shares of capital stock of the Corporation of any class or series or any other securities of the Corporation for such consideration and to such persons, firms or corporations as the Board of Directors, in its sole discretion, may determine, setting aside from the authorized but unissued stock of the Corporation the requisite number of shares for issuance upon the exercise of such warrants, rights or options. Such warrants, rights and options shall be evidenced by one or more instruments approved by the Board of Directors. The Board of Directors shall be empowered to set the exercise price, duration, time for exercise and other terms of such warrants, rights and operations; provided, however, that the consideration to be received for any shares of capital stock subject thereto shall not be less than the par value thereof. ARTICLE VIII INDEMNIFICATION SECTION 8.1 THIRD PARTY ACTIONS. The Corporation (i) shall, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or is or was threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as a director, officer or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (ii) may, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or is or was threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was an employee or agent of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as an employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including counsel fees), judgments, fines and amounts paid or owed in settlement, actually and reasonably incurred by such person or rendered or levied against such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, in itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his conduct was unlawful. Any person seeking indemnification under this Section 8.1 shall be deemed to have met the standard of conduct required for such indemnification unless the contrary is established. SECTION 8.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation (i) shall, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or who is or was threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as a director, officer or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (ii) may, to the maximum extent permitted from time to time under the laws of the State of Delaware, indemnify every person who is or was a party or who is or was threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an employee or agent of the Corporation or any of its direct or indirect subsidiaries or is or was serving at the request of the Corporation or any of its direct or indirect subsidiaries as an employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including counsel fees) actually and reasonably incurred by such person in connection with the defense or settlement or such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification. SECTION 8.3 EXPENSES. Expenses incurred by a director or officer of the Corporation or any of its direct or indirect subsidiaries in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses incurred by other employees and agents of the Corporation and other persons eligible for indemnification under this Article VIII may be paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. SECTION 8.4 NON-EXCLUSIVITY. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any provision of law, the Certificate of Incorporation, the certificate of incorporation or bylaws or other governing documents of any direct or indirect subsidiary of the Corporation, under any agreement, vote of Stockholders or disinterested directors or under any policy or policies of insurance maintained by the Corporation on behalf of any person or otherwise, both as to action in his official capacity and as to action in another capacity while holding any of the positions or having any of the relationships referred to in this Article VIII. SECTION 8.5 ENFORCEABILITY. The provisions of this Article VIII (i) are for the benefit of, and may be enforced directly by, each director or officer of the Corporation the same as if set forth in their entirety in a written instrument executed and delivered by the Corporation and such director or officer and (ii) constitute a continuing offer to all present and future directors and officers of the Corporation. The Corporation, by its adoption of these Bylaws, (A) acknowledges and agrees that each present and future director and officer of the Corporation has relied upon and will continue to rely upon the provisions of this Article VIII in becoming, and serving as, a director or officer of the Corporation or, if requested by the Corporation, a director, officer or fiduciary or the like of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, (B) waives reliance upon, and all notices of acceptance of, such provisions by such directors and officers and (C) acknowledges and agrees that no present or future director or officer of the Corporation shall be prejudiced in his right to enforce directly the provisions of this Article VIII in accordance with their terms by any act or failure to act on the part of the Corporation. SECTION 8.6 INSURANCE. The Board of Directors may authorize, by a vote of the majority of the directors, the Corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VIII. SECTION 8.7 SURVIVAL. The provisions of this Article VIII shall continue as to any person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, executors, administrators, heirs, legatees and devisees of any person entitled to indemnification under this Article VIII. SECTION 8.8 AMENDMENT. No amendment, modification or repeal of this Article VIII or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future director or officer of the Corporation to be indemnified by the Corporation, nor the obligation of the Corporation to indemnify any such director or officer, under and in accordance with the provisions of this Article VIII as in effect immediately prior to such amendment, modification or repeal with respect to claims arising, in whole or in part, from a state of facts extant on the date of, or relating to matters occurring prior to, such amendment, modification or repeal, regardless of when such claims may arise or be asserted. SECTION 8.9 DEFINITIONS. For purposes of this Article VIII, (i) reference to any person shall include the estate, executors, administrators, heirs, legatees and devisees of such person, (ii) "employee benefit plan" and "fiduciary" shall be deemed to include, but not be limited to, the meaning set forth in Section 1002, subsections 3(3) and 21(A), respectively, of the Employee Retirement Income Security Act of 1974, as amended, (iii) references to the judgments, fines and amounts paid or owed in settlement or rendered or levied shall be deemed to encompass and include excise taxes required to be paid pursuant to applicable law in respect of any transaction involving an employee benefit plan and (iv) references to the Corporation shall be deemed to include any predecessor corporation or entity and any constituent corporation or entity absorbed in a merger, consolidation or other reorganization of or by the Corporation which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents and fiduciaries so that any person who was a director, officer, employee, agent or fiduciary of such predecessor or constituent corporation or entity, or served at the request of such predecessor or constituent corporation or entity as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the Corporation as such person would have with respect to such predecessor or constituent corporation or entity if its separate existence had continued. ARTICLE IX NOTICES AND WAIVERS SECTION 9.1 METHODS OF GIVING NOTICES. Whenever, by applicable law, the Certificate of Incorporation or these Bylaws, notice is required to be given to any Stockholder, any director or any member of a committee of the Board of Directors and no provision is made as to how such notice shall be given, personal notice shall not be required and such notice may be given (i) in writing, by mail, postage prepaid, addressed to such Stockholder, director or committee member at his address as it appears on the books or (in the case of a Stockholder) the stock transfer records of the Corporation or (ii) by any other method permitted by law (including, but not limited to, overnight courier service, telegram, telex or telecopier). Any notice required or permitted to be given by mail shall be deemed to be delivered and given at the time when the same is deposited in the United States mail as aforesaid. Any notice required or permitted to be given by overnight courier service shall be deemed to be delivered and given one business day after delivery to such service with all charges prepaid and addressed as aforesaid. Any notice required or permitted to be given by telegram, telex or telecopy shall be deemed to be delivered and given at the time transmitted with all charges prepaid and addressed as aforesaid. SECTION 9.2 WAIVER OF NOTICE. Whenever any notice is required to be given to any Stockholder, director or member of a committee of the Board of Directors by applicable law, the Certificate of Incorporation, or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Attendance of a Stockholder (whether in person or by proxy), director or committee member at a meeting shall constitute a waiver of notice of such meeting, except where such person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE X MISCELLANEOUS PROVISIONS SECTION 10.1 DIVIDENDS. Subject to applicable law and the provisions of the Certificate of Incorporation, dividends may be declared by the Board of Directors at any meeting and may be paid in cash, in property or in shares of the Corporation's capital stock. Any such declaration shall be at the discretion of the Board of Directors. A director shall be fully protected in relying in good faith upon the books of account of the Corporation or statements prepared by any of its officers as to the value and amount of the assets, liabilities or net profits of the Corporation or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared. SECTION 10.2 RESERVES. There may be created by the Board of Directors, out of funds of the Corporation legally available therefor, such reserve or reserves as the Board of Directors from time to time, in its absolute discretion, considers proper to provide for contingencies, to equalize dividends or to repair or maintain any property of the Corporation, or for such other purpose as the Board of Directors shall consider beneficial to the Corporation, and the Board of Directors may thereafter modify or abolish any such reserve in its absolute discretion. SECTION 10.3 CHECKS. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation shall be signed by such officer or officers or by such employees or agents of the Corporation as may be designated from time to time by the Board of Directors. SECTION 10.4 CORPORATE CONTRACTS AND INSTRUMENTS. Subject always to the specific directions of the Board of Directors, the Chairman of the Board (if any), the President, any Vice President, the Secretary or the Treasurer may enter into contracts and execute instruments in the name and on behalf of the Corporation. The Board of Directors and, subject to the specific directions of the Board of Directors, the Chairman of the Board (if any) or the President may authorize one or more officers, employees or agents of the Corporation to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. SECTION 10.5 ATTESTATION. With respect to any deed, deed of trust, mortgage or other instrument executed by the Corporation through its duly authorized officer or officers, the attestation to such execution by the Secretary or an Assistant Secretary of the Corporation shall not be necessary to constitute such deed, deed of trust, mortgage or other instrument a valid and binding obligation of the Corporation unless the resolutions, if any, of the Board of Directors authorizing such execution expressly state that such attestation is necessary. SECTION 10.6 SECURITIES OF OTHER CORPORATIONS. The Chairman of the Board, the Chief Executive Officer, the President or any Vice President of the Corporation shall have the power and authority to transfer, endorse for transfer, vote, consent or take any other action with respect to any securities of another issuer which may be held or owned by the Corporation and to make, execute and deliver any waiver, proxy or consent with respect to any such securities. SECTION 10.7 FISCAL YEAR. The fiscal year of the Corporation shall be January 1 through December 31, unless otherwise fixed by the Board of Directors. SECTION 10.8 SEAL. The seal of the Corporation, if any, shall be such as from time to time may be approved by the Board of Directors. SECTION 10.9 INVALID PROVISIONS. If any part of these Bylaws shall be invalid or inoperative for any reason, the remaining parts, so far as is possible and reasonable, shall remain valid and operative. SECTION 10.10 HEADINGS. The headings used in these Bylaws have been inserted for administrative convenience only and shall not limit or otherwise affect any of the provisions of these Bylaws. SECTION 10.11 REFERENCES/GENDER/NUMBER. Whenever in these Bylaws the singular number is used, the same shall include the plural where appropriate. Words of any gender used in these Bylaws shall include the other gender where appropriate. In these Bylaws, unless a contrary intention appears, all references to Articles and Sections shall be deemed to be references to the Articles and Sections of these Bylaws. SECTION 10.12 AMENDMENTS. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the directors; provided, however, that no such action shall be taken at any special meeting of the Board of Directors unless notice of such action is contained in the notice of such special meeting. These Bylaws may not be altered, amended or rescinded, nor may new bylaws be adopted, by the Stockholders except by the affirmative vote of the holders of not less than 66-2/3% of the voting power of all outstanding Voting Stock, voting together as a single class. Each alteration, amendment or repeal of these Bylaws shall be subject in all respects to Section 8.7. CERTIFICATE OF SECRETARY I, Alton L. Boynton, the duly appointed Secretary of Northwest Biotherapeutics, Inc., hereby certify that the foregoing Bylaws constitute the bylaws of Northwest Biotherapeutics, Inc. as adopted by the Board of Directors on January 26, 2005. /s/ Alton Boynton --------------------------------------- Alton L. Boynton, Secretary EX-10.1 4 v05111exv10w1.txt EXHIBIT 10.1 EXHIBIT 10.1 EXECUTION VERSION NORTHWEST BIOTHERAPEUTICS, INC. SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as of January 26, 2005 (the "CLOSING DATE"), by and between NORTHWEST BIOTHERAPEUTICS, INC., a Delaware corporation (the "COMPANY") and TOUCAN CAPITAL FUND II, L.P. (the "PURCHASER"). RECITALS WHEREAS, the Company and the Purchaser are parties to that certain Amended and Restated Recapitalization Agreement, dated as of July 30, 2004 (as amended from time to time, the "RECAPITALIZATION AGREEMENT"), pursuant to which, among other things, the Purchaser has extended certain bridge loans to the Company. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Recapitalization Agreement. WHEREAS, the Recapitalization Agreement contemplates that an equity financing of the Company may be made, and that the Purchaser will, at its election, serve as the lead investor in such equity financing. WHEREAS, the Purchaser has indicated a willingness to make an equity investment in the Company, subject to the terms and conditions of this Agreement, and this Agreement is intended to serve as a definitive agreement as part of the "Anticipated Equity Financing" (as such term is defined in the Recapitalization Agreement) and that the parties hereto agree that this Agreement is a "Related Recapitalization Document." WHEREAS, the Company has authorized the sale and issuance of an aggregate of fifty million (50,000,000) shares of its Series A Cumulative Convertible Preferred Stock (the "PREFERRED STOCK"). WHEREAS, it is intended that the Purchaser will purchase thirty-two million five hundred thousand (32,500,000) shares (the "SHARES") of Preferred Stock at a purchase price of $0.04 per Share (for an aggregate purchase price of $1,300,000) at the Closing, and that the Purchaser and/or one or more other investors approved by the Purchaser will have the opportunity to participate in future closings ("FUTURE CLOSINGS") during a period of time following the Closing Date in accordance with the term of the Preferred Stock Term Sheet. WHEREAS, it is contemplated that Future Closings, if any, may be effected pursuant to a different form of securities purchase agreement from this Agreement. WHEREAS, it is contemplated that the parties hereto (and other investors participating in Future Closings, if any) shall enter into an Investors' Rights Agreement and Voting Agreement, if applicable, at a mutually agreed upon time in the future. WHEREAS, as contemplated by the Recapitalization Agreement, the Purchaser will also be issued a warrant by the Company to purchase shares of Preferred Stock (the "WARRANT"). EXECUTION VERSION WHEREAS, the Purchaser desires to purchase the Shares and the Warrant on the terms and conditions set forth herein. WHEREAS, the Company desires to issue and sell the Shares and the Warrant to the Purchaser on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. AGREEMENT TO SELL AND PURCHASE. 1.1 AUTHORIZATION OF SHARES AND WARRANT. The Company has authorized (a) the sale and issuance to the Purchaser of the Shares and the Warrant, (b) the issuance of the shares of Preferred Stock to be issued upon exercise of the Warrant (the "WARRANT SHARES"), and (c) the issuance of such shares of Common Stock to be issued upon conversion of the Shares and the Warrant Shares (the "CONVERSION SHARES"). The Shares and the Warrant Shares have the rights, preferences, privileges and restrictions set forth in the Certificate of Designations, Preferences and Rights, in the form attached hereto as EXHIBIT B (the "CERTIFICATE OF DESIGNATIONS"). The Warrant will be in the form attached hereto as EXHIBIT C. 1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at the Closing (as hereinafter defined) the Company hereby agrees to issue and sell to the Purchaser, and the Purchaser agrees to purchase from the Company an aggregate of 32,500,000 Shares, at a purchase price of $0.04 per Share, and the Warrant to purchase 13,000,000 Warrant Shares. 2. CLOSING, DELIVERY AND PAYMENT. 2.1 CLOSING. The closing of the sale and purchase of the Shares and the Warrant under this Agreement (the "CLOSING") shall take place at 10:00 a.m. on the date hereof, at the offices of Cooley Godward LLP, 11951 Freedom Drive, Reston, VA 20190, or at such other time or place as the Company and the Purchaser may mutually agree. 2.2 DELIVERY. At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchaser (a) a stock certificate representing 32,500,000 Shares, against payment of the purchase price therefor in cash as set forth on EXHIBIT A hereto, (b) a warrant certificate, in the form attached hereto as EXHIBIT C, exercisable for 13,000,000 Warrant Shares. 2.3 USE OF PROCEEDS. The proceeds from the sale of the Shares to the Purchaser shall be used by the Company for its growth, modernization and/or expansion and/or for general corporate purposes as permitted by applicable Small Business Administration rules and regulations. 3. CONDITIONS TO CLOSING. EXECUTION VERSION 3.1 INCORPORATION OF CLOSING CONDITIONS. The Company and the Purchaser acknowledge that the Closing constitutes the "first closing of the Convertible Preferred Stock" for purposes of the Recapitalization Agreement and all Related Recapitalization Documents. Accordingly all closing conditions set forth in the Recapitalization Agreement, including without limitation, those conditions set forth in Sections 2.4 and 4.9 thereof, are applicable to the Closing and incorporated by reference herein. 3.2 ADDITIONAL CLOSING CONDITIONS. Notwithstanding anything to the contrary, and unless expressly waived in writing in advance by the Purchaser (any such waiver by the Purchaser shall be applicable only as to the Closing and shall not be deemed a waiver of such condition as to future closings, if any), and only to the extent expressly waived, the Closing shall be conditional upon and subject to the satisfaction or waiver of each of the following conditions precedent, with each such satisfaction or waiver to be determined by the Purchaser in its sole discretion, on or before the Closing. The Purchaser shall make all such determinations in its sole discretion. These conditions are in addition to the conditions set forth in the Recapitalization Agreement. The conditions precedent to the Closing contemplated hereby shall include the following, unless waived by the Purchaser in its sole discretion: (a) The Company shall have in all material respects performed, and be in compliance with, all obligations, agreements, covenants, closing conditions and other provisions contained in the Recapitalization Agreement, the notes evidencing Bridge Funding, and the other Related Recapitalization Documents, to the extent applicable, including, without limitation, the financing documents associated with the issuance of the Preferred Stock, required to be performed or fulfilled on or before the Closing Date. (b) All representations and warranties set forth in the Recapitalization Agreement, the notes evidencing Bridge Funding, and the other Related Recapitalization Documents shall be true and complete as of the Closing. (c) There shall have been no change that has had or is reasonably likely to have a material adverse effect on the business, affairs, prospects, operations, properties, assets, liabilities, structure or condition, financial or otherwise, of the Company (as such business is presently conducted and/or as it is proposed to be conducted) since July 30, 2004 except as disclosed by the Company in writing to Purchaser prior to the Closing. (d) All corporate and other proceedings, and all documents relating to the issuance and sale of the Shares, the Warrant Shares and the Conversion Shares pursuant hereto and pursuant to the Recapitalization Agreement shall be satisfactory in substance and form to the Purchaser. The Purchaser's counsel shall have received all such counterpart originals or certified or other copies of such documents as they may have requested including, without limitation: (i) the resolutions of the Board of Directors of the Company, authorizing and approving all matters in connection with the sale of the Preferred Stock certified by the Secretary of the Company as of the Closing Date; and EXECUTION VERSION (ii) all stockholder consents, votes or other approval required by applicable state or federal law (including any and all SEC rules and regulations) and any consents required by applicable securities exchanges or markets or corporate partners required to authorize and approve all matters in connection with the sale of Series A Stock as contemplated by the Amended and Restated Binding Convertible Preferred Stock Term Sheet by and between the Company and the Purchaser, dated as of October 22 and as amended from time to time. (e) The Company shall have executed, delivered and maintained in force (i) a Convertible Preferred Stock purchase agreement, (ii) an Investors' Rights Agreement, (iii) an amended and restated certificate of incorporation (or if appropriate, a certificate of designation), (iv) a voting agreement, if applicable, and (v) such other documents as may be necessary or desirable in the determination of the Purchaser. (f) The Purchaser shall have received from counsel to the Company an opinion letter containing opinions customary for transactions similar to the transactions contemplated hereby in the form reasonably acceptable to the Purchaser (including, but not limited to, an opinion that the issuance of the Shares, the Warrant, the Warrant Share and the Conversion Shares are exempt from the registration provisions of the federal and state securities laws). (g) The Company shall have delivered a certificate of its Chief Executive Officer, or other authorized and responsible officer of the Company acceptable to the Purchaser, in its sole discretion, certifying that all closing conditions in this Agreement have been fulfilled and that all representations and warranties are applicable and true as of the date of the Closing. (h) The Company shall have provided prior to the Closing Date all due diligence information requested by the Purchaser, and/or necessary to enable the Purchaser to complete a thorough due diligence review and obtain a complete and accurate understanding of the business, operations, prospects, assets, liabilities, structure, legal aspects and condition, financial or otherwise, of the Company. (i) Within the six month period prior to the Closing, the Company shall not have entered into, increased, expanded, extended, renewed or reinstated (or agreed, promised, committed or undertaken to do so), any severance, separation, retention, change of control or similar agreement with any employee, other than such agreements entered into with the prior written approval of the Purchaser. (j) Within the six month period prior to the Closing, the Company shall not have hired, or agreed to hire, any employee or engaged, or agreed to engage, any consultant, independent contractor or any other non-employee personnel, except in accordance with the Company's budget that has been approved by the Company's board of directors and the Purchaser. (k) Within the six month period prior to the Closing, the Company shall not have purchased, leased, hired, rented or otherwise acquired directly or indirectly any rights in or to any asset or facility in an amount in excess of $10,000, or agreed, promised or EXECUTION VERSION committed to do so, except in accordance with the Company's budget that has been approved by the Company's board of directors and the Purchaser. (l) All Intellectual Property licenses, agreements, patent applications and filings shall be current and in good standing. (m) The Company shall have obtained the approval of the required number of its stockholders of the Proposed Equity Financing. (n) Subject to the accuracy of the representations and warranties of the Purchaser set forth in Section 4, on the applicable Closing Date, the sale and issuance of the Shares and the Warrant and the proposed issuance of the Warrant Shares and the Conversion Shares shall be legally permitted by Delaware law and federal and state securities laws, except that the Company shall have up to fifteen (15) days from the Closing Date to file notices of the sale of the Shares and warrant pursuant to Regulation D promulgated under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and applicable state securities laws. (o) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware and shall continue to be in full force and effect as of the Closing Date. (p) The Warrant Shares issuable upon exercise of the Warrant, and the Conversion Shares issuable upon conversion of the Shares and the Warrant Shares, shall have been duly authorized and reserved for issuance upon such conversion. (q) The Warrant in the form attached hereto as EXHIBIT C shall have been executed and delivered by the Company in favor of the Purchaser. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Company that: 4.1 AUTHORIZATION. The Purchaser has full power and authority to enter into this Agreement and this Agreement constitutes a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. 4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be received by the Purchaser and the Conversion Shares (collectively, the "SECURITIES") 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, and the Purchaser has no present intention of selling, granting any participation in or otherwise distributing the same except in compliance with applicable federal and state securities laws. The Purchaser further represents that the Purchaser does not 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 EXECUTION VERSION the Securities other than with respect to potential future distributions of the Securities to its partners in compliance with applicable federal and state securities laws. 4.3 DISCLOSURE OF INFORMATION. The Purchaser has conducted its own due diligence review of the Company and received copies or originals of all documents it has requested from the Company. Notwithstanding the foregoing, this representation shall not in any way be deemed to prohibit, limit, restrict or otherwise impact the Purchaser's rights to indemnification, and/or to any other rights or remedies available at law or equity, from the Company and its affiliates in the event of a breach by the Company of any representation, warranty, covenant or other term hereof or of any Related Recapitalization Document. 4.4 INVESTMENT EXPERIENCE. The Purchaser is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, including a total loss, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities. The Purchaser also represents that it has not been organized for the purpose of acquiring the Securities. 4.5 ACCREDITED INVESTOR. The Purchaser is an "ACCREDITED INVESTOR" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. 4.6 RESTRICTED SECURITIES. The Purchaser understands that the issuance of the Securities has 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 bona fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser understands that the Securities are characterized as "RESTRICTED SECURITIES" under applicable U.S. federal and state securities laws and that, pursuant to these laws, Purchaser must hold the Securities indefinitely unless subsequently registered for resale with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Other than the registration rights set forth in the Convertible Preferred Stock Term Sheet and the covenant set forth in Section 5.1 hereof, the Purchaser acknowledges that the Company has no obligation to register or qualify the Securities for resale. 4.7 LEGENDS. It is understood that the certificates evidencing the Securities may bear one or all of the following legends (or substantially similar legends): (a) "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 SUCH SECURITIES UNDER THE ACT OR UNLESS SUCH TRANSACTION IS IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS." (b) Any legend required by the laws of any state or foreign jurisdiction, to the extent such laws are applicable to the shares represented by the certificate so legended. EXECUTION VERSION (c) Any legend required by the Related Recapitalization Documents. 5. MISCELLANEOUS. 5.1 REGISTRATION RIGHTS. The Company and the Purchaser agree that they will each use their respective best efforts to promptly enter into an Investors' Rights Agreement providing for the registration rights on the terms set forth in the Convertible Preferred Stock Term Sheet at a mutually agreed upon time in the future, which in any event shall be no later than ten business days following the request by the Purchaser. 5.2 TAX TREATMENT OF SHARES AND WARRANT. Each of the Company and the Purchaser covenant that, if the Purchaser determines in its sole discretion that doing so is appropriate, they will, as a result of arm's length bargaining, agree on the fair market value of the Shares being issued in the Closing (if issued apart from the Warrant), and the fair market value of the Warrant (if issued apart from such Shares). The Company and the Purchaser further agree that all tax filings and records relating to or including this Agreement, the Shares and/or or the Warrant shall be prepared on the basis of, and consistently reflect, the agreed fair market values determined in accordance with this Section 5.2, and the Company shall instruct its accountants and other tax-preparation professionals to prepare all tax filings and returns on such basis. 5.3 NO IMPAIRMENT. The Company shall not, by amendment of its certificate of incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, omission, or agreement, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by the Company under and/or in connection with this Agreement, but shall at all times in good faith use best efforts to assist in carrying out of all the provisions of and/or relating to this Agreement and in taking all such action as may be necessary or appropriate to protect each Purchaser's rights, preferences and privileges under and/or in connection with this Agreement against impairment. 5.4 COUNTERPARTS. This Agreement may be executed in counterparts, each of which when so executed and delivered will constitute a complete and original instrument but all of which together will constitute one and the same agreement, and it will not be necessary when making proof of this Agreement or any counterpart thereof to account for any counterpart other than the counterpart of the party against whom enforcement is sought. 5.5 GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law. Each party to this Agreement hereby irrevocably and unconditionally agrees that any legal action, suit or proceeding arising out of or relating to this Agreement or any agreements or transactions contemplated hereby will be brought in any federal or state court located in Delaware, and hereby irrevocably and unconditionally expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and hereby irrevocably and unconditionally waives any claim (by way of motion, as a defense or otherwise) of improper venue, that it is not subject personally to the jurisdiction of such court, that such courts are an inconvenient forum or that this Agreement or the subject matter may not be enforced in or by such courts. Each party hereby irrevocably and unconditionally consents to the service of EXECUTION VERSION process of any of the aforementioned courts in any such action, suit or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the address set forth or provided for in Section 5.6 of this Agreement, such service to become effective upon delivery, in accordance with Section 5.6 below. Nothing herein contained will be deemed to affect the right of any party to serve process in any manner permitted by law or commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained in any action, suit or proceeding brought pursuant to this Section. 5.6 NOTICES. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to be effective upon delivery when delivered (a) personally; (b) by facsimile, provided a copy is mailed on the same day by overnight delivery with a nationally recognized overnight delivery service; (c) by overnight delivery with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications will be, in the case of the Purchaser: Linda F. Powers Managing Director Toucan Capital Corp. 7600 Wisconsin Ave, 7th floor Bethesda, MD 20814 Tel: 240-497-4060 Fax: 240-497-4065 lpowers@toucancapital.com And in the case of the Company: Northwest Biotherapeutics, Inc. Attention: Alton Boynton 22322 20th Avenue, SE, Suite 150 Bothell, Washington 98021 Fax: 425-608-3009 or at such other address and facsimile number as the receiving party will have furnished to the sending party in writing. Each party will provide five (5) business days' prior written notice to the other parties of any change in address or facsimile number. 5.7 SURVIVABILITY. The representations, warranties, covenants and agreements made and incorporated by reference herein will survive any investigation made by or on behalf of the Purchaser or the Company, and will survive for two years after the Closing Date. 5.8 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof will inure to the benefit of, and be binding upon, the respective successors, assigns, heirs, executors and administrators of the parties hereto. Notwithstanding anything to the contrary in this Agreement, the Recapitalization Agreement or the Related Recapitalization Documents, the Purchaser may transfer or assign all or any portion of its rights under this Agreement, the Recapitalization Agreement and the other Related Recapitalization Documents to EXECUTION VERSION any person or entity, or designate another party to exercise all or any portion of the Purchaser's rights under this Agreement, the Recapitalization Agreement and the other Related Recapitalization Documents, so long as such transfer or assignment is permissible under applicable federal and state securities laws. Without limiting the generality of the foregoing, all representations, warranties, covenants and agreements benefiting the Purchaser will inure to the benefit of any and all subsequent holders from time to time of the Shares, the Warrant, the Warrant Shares and the Conversion Shares contemplated by this Agreement. 5.9 ENTIRE AGREEMENT; AMENDMENTS. This Agreement (including the Schedules and Exhibits hereto, which are an integral part of this Agreement), the Recapitalization Agreement (including the Schedules and Exhibits thereto) and the Related Recapitalization Documents (including the Schedules and Exhibits thereto) constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Except as otherwise expressly provided herein, neither this Agreement, the Recapitalization Agreement or the Related Recapitalization Documents nor any term hereof or thereof may be amended, waived, discharged or terminated, except by a written instrument signed by the Company and the Purchaser. Notwithstanding anything to the contrary, no provision that applies to any person or entity specifically designated by name will be amended, waived, discharged or terminated without the express written consent of such named person or entity. Also notwithstanding anything to the contrary, this Agreement, the Recapitalization Agreement and/or the other Related Recapitalization Documents will be amended as and to the extent necessary to comply with the Small Business Investment Act and all regulations, advice, direction and guidance applicable to SBICs. 5.10 INTERPRETATION. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or persons or entity or entities may require. All references to "$" or dollars herein will be construed to refer to United States dollars. The titles of the Sections and subsections of this Agreement are for convenience or reference only and are not to be considered in construing this Agreement. 5.11 RIGHTS, SEVERABILITY. In case any provision of this Agreement, the Recapitalization Agreement or the Related Recapitalization Documents will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. [SIGNATURE PAGE FOLLOWS] EXECUTION VERSION IN WITNESS WHEREOF, the parties hereto have executed this SECURITIES PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: NORTHWEST BIOTHERAPEUTICS, INC. Signature: /s/ Alton Boynton ----------------- Print Name: Alton Boynton ------------- Title: President --------- Address: 22322 20TH Avenue, SE Suite 150 Bothell, WA 98021 PURCHASER: TOUCAN CAPITAL FUND II, L.P. By: /s/ Linda Powers Linda Powers Managing Director [Securities Purchase Agreement Signature Page] EXECUTION VERSION EXHIBIT A SCHEDULE OF PURCHASERS
NUMBER OF AGGREGATE WARRANT PURCHASE NAME AND ADDRESS SHARES SHARES PRICE - ------------------------------ ---------- ---------- ----------- TOUCAN CAPITAL FUND II, L.P. 32,500,000 13,000,000 $1,300,000 Attn: Linda Powers Managing Director 7600 Wisconsin Ave, 7th floor Bethesda, MD 20814 Tel: 240-497-4060 Fax: 240-497-4065 lpowers@toucancapital.com
EXHIBIT B (See Exhibit 3.1 filed herewith.) 1. EXHIBIT C (See Exhibit 10.2 filed herewith) 15. EX-10.2 5 v05111exv10w2.txt EXHIBIT 10.2 EXHIBIT 10.2 EXECUTION VERSION 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. WARRANT NO. PW-1 JANUARY 26, 2005 THIS CERTIFIES THAT, for value received, TOUCAN CAPITAL FUND II, L.P., with its principal office at 7600 Wisconsin Avenue, Suite 700, Bethesda, MD 20814, and/or its designees or assigns (collectively, the "HOLDER"), is entitled to subscribe for and purchase from NORTHWEST BIOTHERAPEUTICS, INC., a Delaware corporation, with its principal office at 22322 20th Avenue SE, Suite 150, Bothell, Washington 98021 (the "COMPANY"), such number of Exercise Shares as provided herein at the Exercise Price (each subject to adjustment as provided herein). This Warrant is being issued pursuant to the terms of the Amended and Restated Recapitalization Agreement, dated July 30, 2004, as amended from time to time, by and among the Company and Investor (the "RECAPITALIZATION AGREEMENT"). 1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings set forth in the Recapitalization Agreement or the Related Recapitalization Documents, as applicable. As used herein, the following terms shall have the following respective meanings: (a) "PREFERRED STOCK" shall mean the Series A Cumulative Convertible Preferred Stock, par value, $0.001 per share of the Company. (b) "DENOMINATOR SHARE PRICE" shall mean $0.10. (c) "EXERCISE PERIOD" shall mean the period commencing on the date of issuance of this Warrant and ending seven (7) years after the date of issuance of this Warrant. (d) "EXERCISE PRICE" shall mean $.04 per share (subject to adjustment pursuant to Section 5). (e) "EXERCISE SHARES" shall mean a number of shares of Preferred Stock equal to the quotient of (i) the Preferred Stock Amount, divided by (ii) the Denominator Share Price, which in this case equals 13,000,000 shares of Preferred Stock, subject to adjustment pursuant to the terms herein. (f) "PREFERRED STOCK AMOUNT" shall mean $1,300,000. 2. EXERCISE OF WARRANT. The rights represented by this Warrant may be exercised in whole or in part at any time or times during the Exercise Period, by delivery of the 1. EXECUTION VERSION 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 either (i) in cash or by check, or (ii) by cancellation of indebtedness; 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 persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder within a reasonable time after the rights represented by this Warrant shall have been so exercised. 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. 2.1 NET EXERCISE. Notwithstanding any provisions herein to the contrary, if the fair market value of one Exercise Share is greater than the Exercise Price (at the date of calculation as set forth below), 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: X = Y (A-B) ------- A 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 fair market value of one Exercise Share (at the date of such calculation) B = Exercise Price (as adjusted to the date of such calculation) 2. EXECUTION VERSION For purposes of the above calculation, the fair market value of one Exercise Share shall be determined by the Company's Board of Directors in good faith; provided, however, that in the event that this Warrant is exercised pursuant to this Section 2.1 in connection with the Company's initial public offering of its Common Stock, the fair market value per share shall be the product of (i) the per share offering price to the public of the Company's initial public offering, and (ii) the number of shares of Common Stock into which each Exercise Share is convertible at the time of such exercise. 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 nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants and agrees that the Company will at all times during the Exercise Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of the series of equity securities comprising the Exercise Shares and the Company's Common Stock to provide for the exercise of the rights represented by this Warrant and the subsequent conversion of the Exercise Shares. If at any time during the Exercise Period the number of authorized but unissued shares of such series of the Company's equity securities or the Company's Common Stock shall not be sufficient to permit exercise of this Warrant or the subsequent conversion of the Exercise Shares, the Company will take such corporate action as shall be necessary to increase its authorized but unissued shares of such series of the Company's equity securities or the Company's Common Stock, as appropriate, to such number of shares as shall be sufficient for such purposes. 3.2 NOTICES OF RECORD DATE. In the event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, the Company shall mail to the Holder, at least ten (10) days prior to the date specified herein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution. 3.3 NO IMPAIRMENT. The Company shall not, by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, omission or agreement, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by the Company under and/or in connection with this Warrant, but shall at all times in good faith use best efforts to assist in carrying out of all the provisions of and/or relating to this Warrant and in taking all such action as may be necessary or appropriate to protect Holder's rights, preferences and privileges under and/or in connection with this Warrant against 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, and the documentation providing for such rights, preferences and privileges will specifically provide as such. 3.4 REGISTRATION RIGHTS. The Company agrees that the Underlying Shares (as defined below) shall be "registrable securities" (or terms of similar impact) under any agreement 3. EXECUTION VERSION executed by the Company as part of the Anticipated Equity Financing, or any other agreement executed by the Company in lieu of, and/or in addition to, the Anticipated Equity Financing, in each case, for purposes of providing registration rights under the Act to holders of shares of capital stock of the Company, and the Company shall ensure that any such agreement conforms with the requirements of this Section 3.4. Such registration rights may not be amended, modified or waived without the prior written consent of the Holder. 4. REPRESENTATIONS OF HOLDER. 4.1 ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. The Holder represents and warrants that it is acquiring the Warrant, the Exercise Shares and the shares of Common Stock issuable upon conversion of the Exercise Shares (the "UNDERLYING SHARES") solely for its account for investment and not with a view to or for sale or distribution of said Warrant, Exercise Shares or Underlying Shares or any part thereof except in compliance with applicable federal and state securities laws. The Holder also represents that the entire legal and beneficial interests of the Warrant, the Exercise Shares and the Underlying Shares the Holder is acquiring is being acquired for, and will be held for, its account only. 4.2 SECURITIES ARE NOT REGISTERED. (a) The Holder understands that the Warrant, the Exercise Shares and the Underlying Shares have not been registered under the Securities Act of 1933, as amended (the "ACT") on the basis that no distribution or public offering of the 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 has no such present intention. (b) The Holder recognizes that the Warrant, the Exercise Shares and the Underlying Shares must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available; provided, however, the parties acknowledge and agree that the Company has an obligation to register the Underlying Shares as provided in the Recapitalization Agreement and Related Recapitalization Documents. (c) The Holder is aware that neither the Warrant, the Exercise Shares nor the Underlying Shares may be sold pursuant to Rule 144 adopted under the Act unless certain conditions are met, including, among other things, the existence of a public market for the shares, 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, EXERCISE SHARES AND UNDERLYING SHARES. (a) The Holder further agrees not to make any disposition of all or any part of the Warrant, Exercise Shares or Underlying Shares in any event unless and until: 4. EXECUTION VERSION (i) The Company shall have received a letter secured by the Holder from the Securities and Exchange Commission stating that no action will be recommended to the Commission with respect to the proposed disposition; (ii) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with said registration statement; or (iii) The Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and such disposition shall not be contrary to any applicable federal and/or state securities laws. (b) The Holder understands and agrees that 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 series of equity securities of the Company comprising the Exercise Shares by reason of stock dividends, splits, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of Exercise Shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of 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. For purposes of this Section 5, the "AGGREGATE EXERCISE PRICE" shall mean the aggregate Exercise Price payable in connection with the exercise in full of this Warrant. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant. 5.2 AUTOMATIC CONVERSION. Upon the automatic conversion of all outstanding shares of the series of equity securities comprising the Exercise Shares into Common Stock, if applicable, this Warrant shall become exercisable for that number of shares of Common Stock of the Company into which the Exercise Shares would then be convertible, so long as such shares, if this Warrant had been exercised prior to such offering, would have been converted into shares of the Company's Common Stock pursuant to the Company's Certificate of Incorporation. In 5. EXECUTION VERSION such case, all references to "Exercise Shares" shall mean shares of the Company's Common Stock issuable upon exercise of this Warrant, as appropriate. 5.3 CERTIFICATE OF ADJUSTMENTS. Upon each adjustment of the Exercise Price and/or Exercise Shares, the Company shall promptly notify the Holder in writing and furnish the Holder with a certificate of its Chief Financial Officer setting forth such adjustment and the facts upon which such adjustment is based. 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. Subject to applicable laws, this Warrant and all rights hereunder are transferable, in whole or in part, at any time or times by the Holder, upon delivery of this Warrant and the form of assignment attached hereto to any transferee designated by Holder. The transferee shall sign a customary investment letter in form and substance reasonably satisfactory to the Company. 8. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by anyone. 9. AMENDMENT. Any term of this Warrant may be amended or waived only with the written consent of the Company and the Holder. 10. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given upon actual 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 ten (10) days advance 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 as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware without giving effect to conflicts of laws principles. [SIGNATURE PAGE FOLLOWS] 6. EXECUTION VERSION 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/ Alton Boynton ----------------- Name: Alton Boynton Title: President Address: 22322 20th Avenue SE Suite 150 Bothell, WA 98021 Fax: (425) 608-3146 ACKNOWLEDGED AND AGREED: TOUCAN CAPITAL FUND II, L.P. By: /s/ Linda Powers ---------------- Name: Linda Powers Title: Managing Director Address: 7600 Wisconsin Avenue Suite 700 Bethesda, MD 20814 Fax: (240) 497-4060 [SIGNATURE PAGE TO WARRANT NO. PW-1] EXECUTION VERSION NOTICE OF EXERCISE TO: NORTHWEST BIOTHERAPEUTICS, INC. (1) [ ] The undersigned hereby elects to purchase ________ shares of ___________ (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 __________ (the "EXERCISE SHARES") of NORTHWEST BIOTHERAPEUTICS, INC. (the "COMPANY") pursuant to the terms of the net exercise provisions set forth in Section 2.1 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: ___________________ (Name) ___________________ ___________________ (Address) (3) The undersigned represents that (i) the aforesaid Exercise Shares are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares except in accordance with applicable federal and state securities laws; (ii) the undersigned is aware of the Company's business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned is experienced in making investments of this type and has such knowledge and background in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment and protecting the undersigned's own interests; (iv) the undersigned understands that Exercise Shares issuable upon exercise of this Warrant have not been registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"), by reason of a specific exemption from the registration provisions of the Securities Act, which exemption depends upon, among other things, the bona fide nature of the investment intent as expressed herein, and, because such securities have not been registered under the Securities Act, they must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid Exercise Shares may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the number of years prescribed by Rule 144, that among the conditions for use of the Rule is the availability of current information to the public about the Company; and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Exercise Shares unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such 1. EXECUTION VERSION disposition is made in accordance with said registration statement or unless such transaction is in compliance with applicable federal and state securities laws. ______________________________ _______________________________ (Date) (Signature) _______________________________ (Print name) 2. EXECUTION VERSION 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 Name: __________________________________________________________________________ (Please Print) Address: _______________________________________________________________________ (Please Print) Dated: __________, 20__ Holder's Signature: ________________________________________ Holder's Address: _________________________________________ 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. 3. EX-10.3 6 v05111exv10w3.txt EXHIBIT 10.3 EXHIBIT 10.3 EXECUTION VERSION AMENDMENT NO. 4 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT (this "AMENDMENT") is made and entered into as of January 26, 2005 (the "FOURTH AMENDMENT DATE") by and between NORTHWEST BIOTHERAPEUTICS, INC., and its affiliates, if any (collectively, the "COMPANY"), a Delaware corporation with offices at 22322 20th Ave SE, Suite 150, Bothell, Washington, 98021, and TOUCAN CAPITAL FUND II, L.P., and its designees (collectively, "INVESTOR"), a Delaware limited partnership with offices at 7600 Wisconsin Avenue, Bethesda, MD 20814. All capitalized terms used herein but not otherwise defined shall have the meaning given such terms in the Agreement (as defined below). RECITALS WHEREAS, the Company and Investor have entered into that certain Amended and Restated Recapitalization Agreement, dated as of July 30, 2004 (the "AGREEMENT"); WHEREAS, on October 22, 2004, the Company and Investor entered into Amendment No. 1 to the Agreement; WHEREAS, on November 10, 2004, the Company and Investor entered into Amendment No. 2 to the Agreement; WHEREAS, on December 27, 2004, the Company and Investor entered into Amendment No. 3 to the Agreement; WHEREAS, the Company and Investor desire to further amend the Agreement to make such changes to the Agreement as are set forth herein; and WHEREAS, Section 4.13(f) of the Agreement provides that the Agreement may be amended or modified only by a written instrument signed by the Company and Investor. AMENDMENT NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Investor hereby agree as follows: 1. Section 2.2(a) of the Agreement is hereby amended by adding the phrase " and, to the extent that Investor determines in its sole discretion to do so, during the Equity Financing Period" immediately following "Bridge Period" in the first sentence thereof. 2. Section 2.3 (c) of the Agreement is hereby amended by adding the phrase "(including any Bridge Funding provided by Investor during the Equity Financing Period)" immediately following "Subsequent Bridge Funding, if any" in the first sentence thereof. 1 EXECUTION VERSION 3. Section 3.3 of the Agreement is hereby amended by adding a new subsection 3.3(c) immediately following Section 3.3(b) thereof, as follows: "(c) Board of Directors Composition: On the Fourth Amendment Date, the authorized number of directors shall be one (1). The authorized number of directors may not be increased or decreased without the consent of the holders of a majority of the shares of Convertible Preferred Stock. The holders of a majority of the shares of Convertible Preferred Stock, acting in their sole discretion, may require the Company to increase the total number of authorized directors at any time following the Fourth Amendment Date, up to a maximum of seven (7) directors. Subject to the limitation in the following sentence, any newly created directorships shall be designated by the holders of a majority of the shares of Convertible Preferred Stock, acting in their sole discretion, to be filled by either: (i) an outside director with significant industry experience, who is reasonably acceptable to the holders of a majority of the Convertible Preferred Stock, to be elected by the holders of the Company's Common Stock (which may, subject to applicable law, the Charter or the Bylaws, be filled initially by vote of the remaining director(s)) (a "COMMON DIRECTORSHIP"); or (ii) a director to be designated by the holders of a majority of the Convertible Preferred Stock (a "PREFERRED DIRECTORSHIP"). Notwithstanding the foregoing, no more than four (4) directorships shall be designated as Preferred Directorships, no more than two (2) directorships shall be designated as Common Directorships, and one (1) director shall be the chief executive officer of the Company." 4. Section 4.7.15 of the Agreement is hereby amended and restated in its entirety as follows: "4.7.15 Liabilities. The Company has the following accrued liabilities: (i) tax liabilities to the State of Washington in the maximum amount of $486,000, (ii) amounts payable to Cognate Therapeutics and (iii) future sublease payments to MediQuest Corporation for the Company's premises sublease not yet due, and a contingent lease liability to Benaroya Capital Co. LLC for premises currently occupied by MediQuest Corporation should Mediquest Corporation default on its lease with Benaroya Capital Co. LLC and which is not yet due, (iv) the Company's aggregate accrued, contingent and/or other liabilities of any nature, either mature or immature, as of the Fourth Amendment Date, do not exceed $370,378 (excluding amounts payable to Cognate), of which (x) $243,778 are currently due payables (including $209,023 for attorney and auditor fees), (y) $52,000 are the aggregate balances of capital leases payable in monthly installments in the amounts set forth in the budget included in the Schedule of Exceptions through the first calendar quarter of 2006, decreasing thereafter, the last of which is fully amortized in May 2007, and (z) $67,000 are accrued vacation and sick pay." 5. Exhibit B to the Agreement, as amended on December 27, 2004, is hereby further amended by Exhibit B-2 hereto (the "SECOND AMENDMENT TO THE AMENDED AND RESTATED CONVERTIBLE PREFERRED STOCK TERM SHEET"). Exhibit B, as so amended, shall be deemed to constitute the "CONVERTIBLE PREFERRED STOCK TERM SHEET" for all purposes under the Agreement and all other Related Recapitalization Documents. 2 EXECUTION VERSION 6. Exhibit D to the Agreement is hereby amended and restated by Exhibit D hereto. Exhibit D, as so amended and restated, shall be deemed to constitute the "PREFERRED STOCK WARRANT" for all purposes under the Agreement and all other Related Recapitalization Documents. 7. Except as amended and/or restated hereby, all other terms and conditions of the Agreement shall be unaffected hereby and remain in full force and effect. 8. This Amendment (including the Exhibits hereto, which are an integral part of the Amendment), together with the Agreement (including the Schedules and Exhibits thereto, which are an integral part of the Agreement) and the Related Recapitalization Documents, constitute the entire agreement among the parties hereto and thereto with regard to the subjects hereof and thereof and supersede all prior agreements and understandings relating to the subject matter hereof and thereof. 9. This Amendment shall be governed by and construed under the laws of the State of Delaware, without regard to its conflicts of law provisions. 10. This Amendment may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement. 11. This Amendment shall take effect immediately upon execution by the Company and Investor. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 3 EXECUTION VERSION IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 4 TO AMENDED AND RESTATED RECAPITALIZATION AGREEMENT as of the Fourth Amendment Date above written. NORTHWEST BIOTHERAPEUTICS, INC. By: /s/ Alton Boynton ------------------ Name: Alton L. Boynton Title: President TOUCAN CAPITAL FUND II, LP By: /s/ Linda Powers ---------------- Name: Linda F. Powers Title: Managing Director 4 EXECUTION VERSION EXHIBIT B-2 FORM OF SECOND AMENDMENT TO AMENDED AND RESTATED CONVERTIBLE PREFERRED STOCK TERM SHEET (See Exhibit 10.4 filed herewith) 5. EXECUTION VERSION EXHIBIT D FORM OF PREFERRED STOCK WARRANT (See Exhibit 10.2 filed herewith) 6. EX-10.4 7 v05111exv10w4.txt EXHIBIT 10.4 EXHIBIT 10.4 EXECUTION VERSION SECOND AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET This SECOND AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET (this "AMENDMENT") is made effective as of January 26, 2005 by and between NORTHWEST BIOTHERAPEUTICS, INC., a Delaware corporation (the "COMPANY"), and TOUCAN CAPITAL FUND II, L.P., a Delaware limited partnership ("TOUCAN"). RECITALS WHEREAS, the Company and Toucan are party to that certain Binding Convertible Preferred Stock Term Sheet originally dated April 26, 2004 and amended and restated on October 22, 2004 as further amended on December 27, 2004 (the "CONVERTIBLE PREFERRED STOCK TERM SHEET"). WHEREAS, concurrently herewith, the Company and its affiliates, if any, and Toucan and its designees, are entering into Amendment No. 4 (the "FOURTH AMENDMENT") to that certain Amended and Restated Recapitalization Agreement by and between the parties thereto; and WHEREAS, in connection with the Fourth Amendment, the Company and Toucan desire to amend the Convertible Preferred Stock Term Sheet as provided herein. AGREEMENT NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Toucan agree as follows: 1. The paragraph of the Convertible Preferred Stock Term Sheet entitled "Board of Directors:" is hereby amended and restated in its entirety as follows: "The authorized number of directors shall initially be one (1). The authorized number of directors may not be increased or decreased without the consent of the holders of a majority of the shares of Convertible Preferred Stock. The holders of a majority of the shares of Convertible Preferred Stock, acting in their sole discretion, may require the Company to increase the total number of authorized directors at any time following the first closing of the Convertible Preferred Stock, up to a maximum of seven (7) directors. Subject to the limitation in the following sentence, any newly created directorships shall be designated by the holders of a majority of the shares of Convertible Preferred Stock, acting in their sole discretion, to be filled by either: (i) an outside director with significant industry experience, who is reasonably acceptable to the holders of a majority of the Convertible Preferred Stock, to be elected by the holders of the Company's Common Stock (which may, subject to applicable law, the Certificate of Incorporation or the Bylaws, be filled initially by vote of the remaining director(s)) (a "COMMON DIRECTORSHIP"); or (ii) a director to be designated by the holders of a majority of the Convertible Preferred Stock (a "PREFERRED EXECUTION VERSION DIRECTORSHIP"). Notwithstanding the foregoing, no more than four (4) directorships shall be designated as Preferred Directorships, no more than two (2) directorships shall be designated as Common Directorships, and one (1) director shall be the chief executive officer of the Company." 2. Unless specifically modified or changed by the terms of this Amendment, all terms and conditions of the Convertible Preferred Stock Term Sheet shall remain in effect and shall apply fully as described and set forth in the Convertible Preferred Stock Term Sheet. 3. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 2. EXECUTION VERSION The Company and Toucan have executed this SECOND AMENDMENT TO AMENDED AND RESTATED BINDING TERM SHEET as of the day and year first written above. TOUCAN CAPITAL FUND II, L.P. NORTHWEST BIOTHERAPEUTICS, INC. By: /s/ Linda Powers By: /s/ Alton Boynton -------------------------- ----------------- Name: Linda Powers Name: Alton L. Boynton Title: Managing Director Title: President 3. EX-10.5 8 v05111exv10w5.txt EXHIBIT 10.5 EXHIBIT 10.5 EXECUTION VERSION FIRST AMENDMENT TO WARRANTS THIS FIRST AMENDMENT TO WARRANTS (this "AMENDMENT") is made and entered into as of January 26, 2005, by and between NORTHWEST BIOTHERAPEUTICS, INC., a Delaware corporation (the "COMPANY"), and TOUCAN CAPITAL FUND II, L.P. (the "WARRANTHOLDER"). RECITALS WHEREAS, in connection with the purchase of $1,300,000 in Series A Cumulative Convertible Preferred Stock of the Company as of the date hereof, the parties hereto wish to enter into this Amendment to clarify the exercise prices of Northwest Biotherapeutics Warrant BW-4, Northwest Biotherapeutics Warrant BW-5, Northwest Biotherapeutics Warrant BW-6 and Northwest Biotherapeutics Warrant BW-7 (collectively, the "WARRANTS"), each of which are held by the Warrantholder. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Section 1(d) of each of the Warrants is hereby amended and restated in its entirety to read "(d) "EXERCISE PRICE" shall mean $0.04 per share (subject to adjustment pursuant to Section 5)." 2. All other terms and conditions of the Warrants shall be unaffected hereby and shall remain in full force and effect. 3. This Amendment shall be governed by and construed under the internal substantive laws of the State of Delaware. 4. This Amendment may be executed in one or more counterparts, including facsimile counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement. [SIGNATURE PAGE FOLLOWS] EXECUTION VERSION IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT TO WARRANTS as of the date first above written. COMPANY: NORTHWEST BIOTHERAPEUTICS, INC. By: /s/ Alton Boynton -------------------- Alton L. Boynton President Agreed to and accepted as of the date first written above: TOUCAN CAPITAL FUND II, L.P. By: /s/ Linda Powers ------------------ Name: Linda F. Powers Title: Managing Director EX-99.1 9 v05111exv99w1.txt EXHIBIT 99.1 EXHIBIT 99.1 NORTHWEST BIOTHERAPEUTICS, INC. 22322 20TH AVENUE S.E., SUITE 150 BOTHELL, WASHINGTON 98021 HTTP://WWW.NWBIO.COM MEDIA CONTACT: LORIE CALVO 425-608-3008 LCALVO@NWBIO.COM NORTHWEST BIOTHERAPEUTICS, INC. TO INITIATE PHASE III CLINICAL TRIAL FOR PROSTATE CANCER DENDRITIC CELL-BASED DCVAX(R)-PROSTATE PHASE III IND CLEARED BY FDA FOR ASSESSMENT IN NON-METASTATIC HORMONE INDEPENDENT PROSTATE CANCER PATIENTS Bothell, Washington - Monday January 31, 2005 - Northwest Biotherapeutics (OTCBB: NWBT.OB) today announced that it has received clearance from the Food and Drug Administration (FDA) to begin assessment of its cell based dendritic cell product candidate, DCVax(R)-Prostate, in a Phase III clinical trial. This trial is based on promising clinical data from a previously conducted Phase I/II clinical trial. The double blinded, placebo controlled Phase III clinical trial is expected to enroll about 600 patients at 30-50 sites throughout the United States. "The initiation of this Phase III trial for non-metastatic hormone independent prostate cancer patients represents a major milestone achievement for our lead product candidate, DCVax(R)-Prostate, and for implementation of our new business strategy, and progress with our recent recapitalization agreement with Toucan Capital of Bethesda, MD" stated Alton L. Boynton, Ph.D., President, Chief Operating Officer, and a co-founder of NWBT. "I believe DCVax(R)-Prostate represents a promising new treatment for non-metastatic hormone independent prostate cancer for which there is currently no FDA approved product." Northwest Biotherapeutics previously received clearance through the FDA for a Phase II clinical trial for DCVax(R)-Brain, a promising new treatment for Glioblastoma Multiforme which is the most common, and lethal form of brain cancer. The company intends to begin this multi-site clinical trial later this year. In addition, the DCVax(R) platform can be used for multiple cancer indications, and NWBT has completed preclinical work targeted for a Phase I clinical trial for non-small cell lung cancer and head and neck cancer. ABOUT NORTHWEST BIOTHERAPEUTICS Northwest Biotherapeutics is a biotechnology company focused on discovering, developing and commercializing immunotherapy products that safely generate and enhance immune system responses to effectively treat cancer. The company has completed Phase I/II clinical trials for its lead product candidate DCVax(R) - Prostate and completed preclinical work for several other product candidates targeting multiple cancers. Three technologies form the basis of our product candidates: a dendritic cell-based immunotherapy platform applicable to multiple cancers; a NORTHWEST BIOTHERAPEUTICS, INC. 22322 20TH AVENUE S.E., SUITE 150 BOTHELL, WASHINGTON 98021 HTTP://WWW.NWBIO.COM therapeutic monoclonal antibody product candidate applicable to multiple cancer types; and an antibody-based imaging agent for metastatic prostate cancer. Statements made in this news release that are not historical facts are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as "expects," "believes," "intends," and similar expressions are intended to identify forward-looking statements. Actual results may differ materially from those projected in any forward-looking statement. Specifically, there are a number of important factors that could cause actual results to differ materially from those anticipated, such as the Company's ability to raise additional capital, risks related to the Company's ability to enroll patients in the planned Phase III trial of DCVAX(R)-Prostate and complete the trial on a timely basis, the uncertainty of the clinical trials process and whether DCVAX(R)-Prostate will demonstrate safety and efficacy, risks associated with the planned Phase II clinical trial of DCVAX(R)-Brain and the planned Phase I clinical trial for non-small cell lung cancer and head and neck cancer, and the timely performance of third parties. Additional information on these and other factors, which could affect the Company's results, is included in its Securities and Exchange Commission filings. Finally, there may be other factors not mentioned above or included in the Company's SEC filings that may cause actual results to differ materially those projected in any forward-looking statement. You should not place undue reliance on any forward-looking statements. The Company assumes no obligation to update any forward-looking statements as a result of new information, future events or developments, except as required by securities laws. -----END PRIVACY-ENHANCED MESSAGE-----