EXHIBIT 10.2
FORM OF WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR WITH ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SECURITIES IS EFFECTIVE UNDER
THE SECURITIES ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT AND, IF THE COMPANY REQUESTS, AN OPINION SATISFACTORY TO THE
COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
NORTHWEST BIOTHERAPEUTICS, INC.
WARRANT
Warrant No. 2006-[ ] Dated: [ ], 2006
Northwest Biotherapeutics, Inc., a Delaware corporation (the "COMPANY"),
hereby certifies that, for value received, [ ] or its registered assigns
(including permitted transferees, the "HOLDER"), is entitled to purchase from
the Company up to a total of [ ] shares (as adjusted from time to time as
provided in Section 9) of Common Stock (as defined below) (each such share, a
"WARRANT SHARE" and all such shares, the "WARRANT SHARES") at an exercise price
equal to $[ ] per share (as adjusted from time to time as provided in Section 9,
the "EXERCISE PRICE"), at any time and from time to time from and after the
Original Issue Date through and including March 30, 2011 (the "EXPIRATION
DATE"), and subject to the following terms and conditions. This Warrant is one
of a series of similar warrants (the "WARRANTS") issued pursuant to that certain
Securities Purchase Agreement, dated as of the Original Issue Date, by and among
the Company, the Holder and certain other purchasers listed on Schedule A
thereto (the "PURCHASE AGREEMENT"), providing for the issuance and sale of
Common Stock and Warrants by the Company to the Holder and such other investors.
1. Definitions. The capitalized terms used herein and not otherwise
defined shall have the meanings set forth below:
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL"
as used with respect to any person or entity means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"ACQUISITION" means any merger involving the Company or any
subsidiary of the Company, or any purchase by the Company or any subsidiary of
the Company of stock or assets of any other Person in which the consideration
paid in such transaction consists in whole, or in part of Common Stock, Common
Stock Equivalents or Convertible Securities.
"CAPITAL STOCK" means and includes (i) any and all shares,
interests, participations or other equivalents of or interests in (however
designated) corporate stock, including, without limitation, shares of preferred
or preference stock, (ii) all partnership interests (whether general or limited)
in any Person which is a partnership, (iii) all membership interests or limited
liability company interests in any limited liability company, and (iv) all
equity or ownership interests in any Person of any other type.
"COMMON STOCK" means the Common Stock of the Company, par value
$.001 per share, as constituted on the Original Issue Date.
"COMMON STOCK EQUIVALENT" means any Convertible Security or warrant,
option or other right to subscribe for or purchase any shares of Common Stock or
any Convertible Security.
"CONVERTIBLE SECURITIES" means evidences of indebtedness, shares of
Capital Stock or other Securities which are or may be at any time convertible
into or exchangeable for shares of Common Stock. The term "Convertible Security"
means one of the Convertible Securities.
"COMPANY OFFER" means any tender offer (including exchange offer),
as amended from time to time, made by the Company or any of its subsidiaries for
the purchase (including the acquisition pursuant to an exchange offer) of all or
any portion of the outstanding shares of Common Stock, except as permitted
pursuant to Rule 10b-18 promulgated under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT").
"ELIGIBLE MARKET" means any of the New York Stock Exchange, the
American Stock Exchange or Nasdaq.
"MARKET PRICE" means, as to any security, (i) if the principal
trading market for such security is an exchange, the average of the last
reported sale prices per share for the last five previous Trading Days in which
a sale was reported, as officially reported on any consolidated tape, (ii) if
clause (i) is not applicable, the average of the closing bid price per share for
the last five previous Trading Days as set forth by Nasdaq or on the OTC
Bulletin Board or (iii) if clauses (i) and (ii) are not applicable, the average
of the closing bid price per share for the last five previous Trading Days as
set forth in the National Quotation Bureau sheet listing for such security.
Notwithstanding the foregoing, if there is no reported sales price or closing
bid price, as the case may be, on any of the ten Trading Days preceding the
event requiring a determination of Market Price hereunder, then the Market Price
shall be determined in good faith by resolution of the Board of Directors of the
Company, based on the best information available to it.
"NASDAQ" means the Nasdaq SmallCap Market or Nasdaq National Market.
"ORIGINAL ISSUE DATE" means March 30, 2006.
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"OTHER SECURITIES" refers to any Capital Stock (other than Common
Stock) and other securities of the Company or any other Person which the Holder
of this Warrant at any time shall be entitled to receive, or shall have
received, upon the exercise of this Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 9 hereof or otherwise.
"PERSON" means any individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"PRIOR SECURITY" means any right and/or security directly or
indirectly exercisable or exchangeable for, or convertible into, shares of
Common Stock that was outstanding as of the Original Issue Date.
"REGISTRATION STATEMENT" shall have the meaning set forth in the
Purchase Agreement.
"STRATEGIC TRANSACTION" means any collaboration, licensing,
partnering or other commercial transaction entered into by the Company in
furtherance of the development of the Company's product candidates, technology
and/or intellectual property.
"TRADING DAY" means (a) any day on which the Common Stock is listed
or quoted and traded on any Eligible Market or (b) if the Common Stock are not
then quoted and traded on any Eligible Market, then a day on which trading
occurs on Nasdaq (or any successor thereto).
"TRANSFER AGENT" shall mean Mellon Investor Services or such other
Person as the Company may appoint from time to time.
"WARRANT SHARES" shall initially mean shares of Common Stock and, in
addition, may include Other Securities and Distributed Property (as defined in
Section 9(e)) issued or issuable from time to time upon exercise of this
Warrant.
2. Registration of Warrant. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the transfer of
any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto as Appendix A duly
completed and signed, to the Company at its address specified herein. Upon any
such registration and transfer, a new warrant in substantially the form of a
Warrant (any such new warrant, a "NEW WARRANT"), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. Each new warrant evidencing the
Warrant so transferred shall bear the appropriate restrictive legend set forth
in Section 4(j)(ii) of the Purchase Agreement. The acceptance of the
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New Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a Warrant, and
such transferee shall be subject to the terms and conditions of the Purchase
Agreement, including, without limitation, the restrictions on transfer set forth
in Section 4(i) of the Purchase Agreement.
4. Exercise and Duration of Warrant.
(a) This Warrant shall be exercisable by the registered Holder at
any time and from time to time on and after the Original Issue Date through and
including the Expiration Date. At 5:00 P.M., New York City time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value, regardless of whether this Warrant shall be
returned to the Company.
(b) A Holder may exercise this Warrant by delivering to the Company
(i) an exercise notice, in the form attached hereto as Appendix B (the "EXERCISE
NOTICE"), appropriately completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares as to which this Warrant is
being exercised (as set forth in Section 4(c) below), and the date such items
are received by the Company is an "EXERCISE DATE." Execution and delivery of the
Exercise Notice shall have the same effect as cancellation of the original
Warrant and issuance of a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares, if any.
(c) The Holder shall pay the Exercise Price (i) in cash, by
certified bank check payable to the order of the Company or by wire transfer of
immediately available funds in accordance with the Company's instructions or
(ii) if at any time on or after the Original Issue Date, (x) there is no
effective Registration Statement registering the resale of the Warrant Shares by
the Holder and (y) the Market Price exceeds the Exercise Price, by means of a
"cashless exercise", by presenting and surrendering to the Company this Warrant,
in which event the Company shall issue to the Holder the number of Warrant
Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the
Holder upon such cashless exercise;
Y = the number of Warrant Shares with respect to
which this Warrant is being exercised;
A = the Market Price on the Exercise Date; and
B = the Exercise Price.
(d) If an exercise of this Warrant is to be made in connection with
a registered public offering or sale of the Company, such exercise may, at the
election of the Holder, be conditioned on the consummation of the public
offering or sale of the Company, in which case such exercise shall not be deemed
effective until the consummation of such transaction.
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5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly, but
in no event later than the third (3rd) Trading Day following such exercise,
issue or cause to be issued and deliver or cause to be delivered to the Holder,
in such name or names as the Holder may designate, a certificate for the Warrant
Shares issuable upon such exercise bearing (only if such legend is required by
applicable law) the restrictive legend set forth in Section 4(j)(i) of the
Purchase Agreement. The Holder, or any Person so designated by the Holder to
receive the Warrant Shares, shall be deemed to have become holder of record of
such Warrant Shares as of the Exercise Date.
(b) This Warrant is exercisable, either in its entirety or, from
time to time, for a portion of the number of Warrant Shares. Upon surrender of
this Warrant following one or more partial exercises, the Company shall issue or
cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares.
(c) Compensation for Buy-In on Failure to Timely Deliver
Certificates Upon Exercise. In addition to any other rights available to the
Holder, if the Company fails to cause its transfer agent to transmit to the
Holder a certificate or certificates representing the Warrant Shares pursuant to
an exercise on or before the third (3rd) Trading Day following such exercise,
and if after such date the Holder is required by its broker to purchase (in an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a "Buy-In"), then the Company shall
(1) pay in cash to the Holder the amount by which (x) the Holder's total
purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of shares of Warrant Shares that the Company was required to deliver to
the Holder in connection with the exercise at issue times (B) the price at which
the sell order giving rise to such purchase obligation was executed, and (2) at
the option of the Holder, either reinstate the portion of the Warrant and
equivalent number of shares of Warrant Shares for which such exercise was not
honored or deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted
exercise of shares of Common Stock with an aggregate sale price giving rise to
such purchase obligation of $10,000, under clause (1) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The
Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In, together with applicable confirmations
and other evidence reasonably requested by the Company. Nothing herein shall
limit a Holder's right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company's failure to
timely deliver certificates representing shares of Common Stock upon exercise of
this Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for
shares of Common Stock upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, withholding tax, transfer
agent fee or other incidental tax or expense in
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respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificates for Warrant Shares or Warrant in a name
other than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and in substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity, if requested.
8. Reservation of Warrant Shares. The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from all taxes, liens, claims,
encumbrances with respect to the issuance of such Warrant Shares and will not be
subject to any pre-emptive rights or similar rights (taking into account the
adjustments and restrictions of Section 9 hereof). The Company covenants that
all Warrant Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued, fully paid and nonassessable. The Company
will take all such action as may be necessary to assure that such shares Common
Stock may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed or quoted, as the
case may be.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9.
(a) Dividends. If the Company, at any time while this Warrant is
outstanding, pays a dividend on its Common Stock payable in additional shares of
Common Stock or otherwise makes a distribution on any class of capital stock
that is payable in shares of Common Stock (otherwise than in respect of any
Prior Security, or any Common Stock or Convertible Security issuable upon
exercise, exchange or conversion of any Prior Security, in accordance with the
terms thereof), then in each such case the Exercise Price shall be multiplied by
a fraction, (A) the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to the opening of business on the day after
the record date for the determination of stockholders entitled to receive such
dividend or distribution and (B) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment
made pursuant to this Section 9(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
dividend or distribution; provided, however, that if such record date shall have
been fixed and such dividend is not fully paid or if such distribution is not
fully made on the date fixed therefor, any such adjustment shall become
effective as of the time of actual payment of such dividends or
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distribution. For the avoidance of doubt and notwithstanding anything contained
in this Warrant, no adjustment to the Exercise Price shall occur pursuant to
this subsection (a) upon the accrual or payment of interest or dividends on, or
the exercise, conversion or exchange of, any Prior Securities (or any Common
Stock or Convertible Securities issued directly or indirectly upon exercise,
exchange or conversion thereof) for Common Stock or Convertible Securities.
(b) Stock Splits. If the Company, at any time while this Warrant is
outstanding, (i) subdivides outstanding shares of Common Stock into a larger
number of shares, or (ii) combines outstanding shares of Common Stock into a
smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction, (A) the numerator of which shall be the number of
shares of Common Stock outstanding immediately before such event and (B) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment pursuant to this Section 9(b) shall
become effective immediately after the effective date of such subdivision or
combination.
(c) Reclassifications. A reclassification of the Common Stock (other
than any such reclassification in connection with a merger or consolidation to
which Section 9(f) applies) into shares of any other class of stock shall be
deemed:
(i) a distribution by the Company to the holders of its Common
Stock of such shares of such other class of stock for the purposes and within
the meaning of this Section 9; and
(ii) if the outstanding shares of Common Stock shall be
changed into a larger or smaller number of shares of Common Stock as part of
such reclassification, such change shall be deemed a subdivision or combination,
as the case may be, of the outstanding shares of Common Stock for the purposes
and within the meaning of Section 9(b).
(d) Reserved.
(e) Other Distributions. If the Company, at any time while this
Warrant is outstanding, distributes to holders of Common Stock (i) evidences of
its indebtedness, (ii) any security (other than a distribution of Common Stock
covered by Section 9(a)), (iii) rights or warrants to subscribe for or purchase
any security or (iv) any other asset (in each case, "DISTRIBUTED PROPERTY"),
then in each such case the Exercise Price in effect immediately prior to the
record date fixed for determination of stockholders entitled to receive such
distribution (and the Exercise Price thereafter applicable) shall be adjusted
(effective on and after such record date) to equal the product of such Exercise
Price multiplied by a fraction, (A) the numerator of which shall be Market Price
on such record date less the then fair market value per share of the Distributed
Property distributed in respect of one outstanding share of Common Stock, which,
if the Distributed Property is other than cash or marketable securities, shall
be as determined in good faith by the Board of Directors of the Company, and (B)
the denominator of which shall be the Market Price on such record date.
(f) Issuance of Additional Shares of Common Stock. In the event the
Company shall, at any time during the twelve months following the Original Issue
Date, issue any shares of Common Stock (otherwise than (i) in respect of, or
pursuant to any exercise,
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exchange or conversion of, any Prior Security, (ii) as provided in the foregoing
subsections (a) through (e) of this Section 9, (iii) in connection with an
Acquisition or Strategic Transaction, or (iv) in respect of any equity incentive
plan or agreement of the Company), at a price per share less than the Exercise
Price then in effect or without consideration, then the Exercise Price upon each
such issuance shall be adjusted to the price equal to the consideration per
share paid for such shares of Common Stock; provided that if such issuance or
deemed issuance was without consideration, then the Company shall be deemed to
have received an aggregate of $.001 of consideration for all such shares of
Common Stock issued or deemed to be issued. For the avoidance of doubt and
notwithstanding anything contained in this Warrant, no adjustment to the
Exercise Price shall occur pursuant to this subsection (f) upon the exercise,
conversion or exchange of any Prior Securities.
(g) Issuance of Common Stock Equivalents. If, at any time during the
twelve months following the Original Issue Date, the Company shall distribute to
the holders of its Common Stock, or shall issue any Common Stock Equivalents
(otherwise than (i) in respect of, or pursuant to any exercise, exchange, or
conversion of, any Prior Security, (ii) as provided in subsection (a) through
(e) of this Section 9, (iii) in connection with an Acquisition or Strategic
Transaction, or (iv) in respect of any equity incentive plan or agreement of the
Company) whether or not the rights to exchange or convert thereunder are
immediately exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange shall be less than the Exercise Price
in effect immediately prior to the time of such issue or sale, or if, after any
such issuance of Common Stock Equivalents, the price per share for which shares
of Common Stock may be issuable under such Common Stock Equivalents thereafter
is amended or adjusted during the twelve months following the Original Issue
Date, and such price as so amended shall be less than the Exercise Price in
effect at the time of such amendment or adjustment, then the Exercise Price then
in effect shall be adjusted as provided in Section 9(g). No further adjustments
of the Exercise Price then in effect shall be made upon the actual issue of
Common Stock upon conversion or exchange of Common Stock Equivalents. For the
avoidance of doubt and notwithstanding anything contained in this Warrant, no
adjustment to the Exercise Price shall occur pursuant to this subsection (g)
upon the issuance of any Common Stock Equivalents in respect of, or pursuant to
the exercise, conversion or exchange of, any Prior Securities, nor shall any
adjustment of the Exercise Price be made upon the subsequent issue of such
Common Stock upon conversion, exercise or exchange of such Common Stock
Equivalents.
(h) Fundamental Transactions. If, at any time while this Warrant is
outstanding, (i) the Company effects any merger or consolidation of the Company
with or into another Person, (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related transactions or
(iii) there shall occur any merger of another Person into the Company whereby
the Common Stock is cancelled, converted or reclassified into or exchanged for
other securities, cash or property (in any such case, a "FUNDAMENTAL
TRANSACTION"), then, as a condition to the consummation of such Fundamental
Transaction, the Company shall (or, in the case of any Fundamental Transaction
in which the Company is not the surviving entity, the Company shall take all
reasonable steps to cause such other Person to) execute and deliver to each
Holder of Warrants a written instrument providing that:
(x) so long as any Warrant remains outstanding on such terms
and subject to such conditions as shall be as nearly equivalent as may be
practicable to the provisions
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set forth in this Warrant, each Warrant, upon the exercise thereof at any time
on or after the consummation of such Fundamental Transaction, shall be
exercisable into, in lieu of Common Stock issuable upon such exercise prior to
such consummation, the securities or other property (the "SUBSTITUTED PROPERTY")
that would have been received in connection with such Fundamental Transaction by
a holder of the number of shares of Common Stock into which such Warrant was
exercisable immediately prior to the consummation of such Fundamental
Transaction, assuming such holder of Common Stock:
(A) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be (a "CONSTITUENT PERSON"), or
an Affiliate of a Constituent Person; and
(B) failed to exercise such Holder's rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable in connection with such Fundamental Transaction (provided, however,
that if the kind or amount of securities, cash or other property receivable in
connection with such Fundamental Transaction is not the same for each share of
Common Stock held immediately prior to such Fundamental Transaction by a Person
other than a Constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised (a "NON-ELECTING SHARE"),
then, for the purposes of this Section 9(f), the kind and amount of securities,
cash and other property receivable in connection with such Fundamental
Transaction by each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares); and
(y) the rights and obligations of the Company (or, in the
event of a transaction in which the Company is not the surviving Person, such
other Person) and the Holders in respect of Substituted Property shall be as
nearly equivalent as may be practicable to the rights and obligations of the
Company and Holders in respect of Common Stock hereunder.
Such written instrument shall provide for adjustments which, for
events subsequent to the effective date of such written instrument, shall be as
nearly equivalent as may be practicable to the adjustments provided for in
Section 9. The above provisions of this Section 9(f) shall similarly apply to
successive Fundamental Transactions.
(i) Adjustment of Number of Warrant Shares. Simultaneously with any
adjustment to the Exercise Price pursuant to paragraphs (a) through (g) of this
Section 9, the number of Warrant Shares that may be purchased upon exercise of
this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the increased or
decreased number of Warrant Shares shall be the same as the aggregate Exercise
Price payable for the Warrant Shares immediately prior to such adjustment. For
the avoidance of doubt and notwithstanding anything contained in this Warrant,
this Section 9(i) will not apply in respect of any adjustments to the Exercise
Price pursuant to Section 9(h).
(j) Calculations. All calculations under this Section 9 shall be
made to the nearest cent or the nearest 1/100th of a share, as applicable. The
number of shares of Common Stock outstanding at any given time shall not include
shares owned or held by or for the account
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of the Company, and the disposition of any such shares shall be considered an
issue or sale of Common Stock.
(k) Adjustments. Notwithstanding any provision of this Section 9, no
adjustment of the Exercise Price shall be required if such adjustment is less
than $0.05; provided, however, that any adjustments which by reason of this
Section 9(i) are not required to be made shall be carried forward and taken into
account for purposes of any subsequent adjustment.
(l) Notice of Adjustments. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company will promptly deliver to the Holder a
certificate executed by the Company's Chief Financial Officer setting forth, in
reasonable detail, the event requiring such adjustment and the method by which
such adjustment was calculated, the adjusted Exercise Price and the adjusted
number or type of Warrant Shares or other securities issuable upon exercise of
this Warrant (as applicable). The Company will retain at its office copies of
all such certificates and cause the same to be available for inspection at said
office during normal business hours by the Holder or any prospective purchaser
of the Warrant designated by the Holder.
(m) Notice of Corporate Events. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including, without limitation, any granting of
rights or warrants to subscribe for or purchase any Capital Stock of the Company
or any subsidiary of the Company, (ii) authorizes, approves, enters into any
agreement contemplating, or solicits stockholder approval for, any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to the
Holder a notice describing the material terms and conditions of such transaction
at least 15 calendar days prior to the applicable record or effective date on
which a Person would need to hold Common Stock in order to participate in or
vote with respect to such transaction and the Company will take all steps
reasonably necessary in order to ensure that the Holder is given the practical
opportunity to exercise this Warrant prior to such time; provided, however, that
the failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such notice.
10. Fractional Shares. The Company shall not be required to issue or cause
to be issued fractional Warrant Shares on the exercise of this Warrant. If any
fraction of a Warrant Share would, except for the provisions of this Section, be
issuable upon exercise of this Warrant, the Company shall make a cash payment to
the Holder equal to (a) such fraction multiplied by (b) the Market Price on the
Exercise Date of one full Warrant Share.
11. Restricted Securities. The Holder represents and warrants that it (i)
understands that the Warrant and the Warrant Shares have not been registered
under the Securities Act and (ii) understands the restrictions set forth on the
legend printed on the face of this Warrant.
12. Listing on Securities Exchanges. In furtherance and not in limitation
of any other provision of this Warrant, if the Company at any time shall list
any Common Stock on any Eligible Market, the Company will, at its expense,
simultaneously list the Warrant Shares (and maintain such listing) on such
Eligible Market, upon official notice of issuance following the exercise of this
Warrant; and the Company will so list, register and maintain such listing of any
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Other Securities on any Eligible Market, if and at the time that any securities
of like class or similar type shall be listed on such Eligible Market by the
Company.
13. Remedies. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be mailed by certified mail, return receipt requested, or by a
nationally recognized courier service or delivered (in person or by facsimile),
against receipt to the party to whom such notice or other communication is to be
given. The address for such notices or communications shall be as set forth in
the Purchase Agreement entered into by the Holder and the Company. Any notice or
other communication given by means permitted by this Section 14 shall be deemed
given at the time of receipt thereof.
15. Warrant Agent. The Company shall serve as warrant agent under this
Warrant. Upon 30 days' notice to the Holder, the Company may appoint a new
warrant agent. Any Person into which any new warrant agent may be merged, any
Person resulting from any consolidation to which any new warrant agent shall be
a party or any Person to which any new warrant agent transfers substantially all
of its corporate trust or stockholders services business shall be a successor
warrant agent under this Warrant without any further act. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed (by first class mail, postage prepaid) to the Holder at the Holder's
last address as shown on the Warrant Register.
16. Miscellaneous. (a) The Company shall not assign this Warrant or any of
its rights or obligations hereunder, except (i) to a successor in interest in
the event of a Fundamental Transaction or (ii) upon the prior written consent of
the Holder. This Warrant may be assigned by the Holder, provided that such
transfer is in compliance with the terms and conditions of this Warrant and
Section 4(i) of the Purchase Agreement and permitted by federal and state
securities laws. This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Warrant. This Warrant may be amended only
in writing signed by the Company and the Holder and their successors and
assigns.
(b) The Company will not, by amendment of its governing documents or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such commercially reasonable action as may be necessary
or appropriate in order to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any Warrant
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Shares above the amount payable therefor upon exercise thereof, (ii) will take
all such commercially reasonable action as may be reasonably necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares on the exercise of this Warrant, free from all
taxes, liens, claims and encumbrances and (iii) will not close its stockholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
(c) This Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to conflicts of
laws principles thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and Federal courts sitting in the City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of the Purchase Agreement),
and hereby irrevocably waives, and agrees not to assert any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither party shall be deemed in default of any provision of
this Warrant, to the extent that performance of its obligations or attempts to
cure a breach hereof are delayed or prevented by any event reasonably beyond the
control of such party, including, without limitation, war, hostilities, acts of
terrorism, revolution, riot, civil commotion, national emergency, strike,
lockout, unavailability of supplies, epidemic, fire, flood, earthquake, force of
nature, explosion, embargo, or any other Act of God, or any law, proclamation,
regulation, ordinance, or other act or order (or absence of act or order)of any
court, government or governmental agency, provided that such party gives the
other party written notice thereof promptly upon discovery thereof and uses
reasonable efforts to cure or mitigate the delay or failure to perform.
(e) The headings herein are for convenience only, do not constitute
a part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(f) In case any one or more of the provisions of this Warrant shall
be deemed invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
NORTHWEST BIOTHERAPEUTICS, INC.
By: _____________________________________
Name:
Title:
Acknowledged and agreed:
___________________________
Holder
By: ____________________________
Name:
Title:
APPENDIX A
FORM OF ASSIGNMENT
(to be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________________ the right represented by the
within Warrant to purchase _____________ shares of Common Stock of Northwest
Biotherapeutics, Inc. to which the within Warrant relates and appoints
__________________________ attorney to transfer said right on the books of
Northwest Biotherapeutics, Inc. with full power of substitution in the premises.
Dated:____________ ________________________
(Signature must conform in all respects to name
of Holder as specified on face of the Warrant)
Address of Transferee:
______________________
______________________
______________________
In the presence of:
____________________
APPENDIX B
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To: Northwest Biotherapeutics, Inc.
The undersigned is the Holder of Warrant No. 2006-___ (the "Warrant") issued by
Northwest Biotherapeutics, Inc., a Delaware corporation (the "Company").
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
1. The Warrant is currently exercisable to purchase a total of _________
Warrant Shares.
2. The undersigned Holder hereby exercises its right to purchase ________
Warrant Shares pursuant to the Warrant.
3. The Holder intends that payment of the Exercise Price shall be made as
(check one):
Cash Exercise_______
Cashless Exercise_______
4. If the Holder has elected a Cash Exercise, the Holder shall pay the sum of
$________ to the Company in accordance with the terms of the Warrant.
5. If the Holder has elected a Cashless Exercise, a certificate shall be
issued to the Holder for the number of shares equal to the whole number
portion of the product of the calculation set forth below, which is
___________. The Company shall pay a cash adjustment in respect of the
fractional portion of the product of the calculation set forth below in an
amount equal to the product of the fractional portion of such product and
the Market Price on the Exercise Day, which product is ____________.
X = Y[(A-B)/A]
X = the number of Warrant Shares to be issued to the Holder.
Number of Warrant Shares being exercised:_______________("Y").
Market Price on the Exercise Day:______________("A").
Exercise Price:______________("B")
6. Pursuant to this exercise, the Company shall deliver to the Holder Warrant
Shares in accordance with the terms of the Warrant.
7. Following this exercise, the Warrant shall be exercisable to purchase a
total of __________ Warrant Shares.
Dated: ______________ Name of Holder:
(Print)_______________________
By:__________________________
Name:________________________
Title:_________________________
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
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