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EXHIBIT 10.21
NORTHWEST BIOTHERAPEUTICS, INC.
SERIES D
INVESTORS' RIGHTS AGREEMENT
OCTOBER , 2000
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TABLE OF CONTENTS
PAGE
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1. Registration Rights......................................... 1
1.1 Definitions................................................. 1
1.2 Company Registration........................................ 2
1.3 Obligations of the Company.................................. 2
1.4 Furnish Information......................................... 3
1.5 Expenses of Registration.................................... 3
1.6 Underwriting Requirements................................... 3
1.7 Delay of Registration....................................... 3
1.8 Indemnification............................................. 4
1.9 Reports Under Securities Exchange Act of 1934............... 5
1.10 Assignment of Registration Rights........................... 6
1.11 "Market Stand-Off" Agreement................................ 6
1.12 Termination of Registration Rights.......................... 7
2. Covenants of the Company.................................... 7
2.1 Delivery of Financial Statements............................ 7
2.2 Inspection.................................................. 7
2.3 Termination of Covenants.................................... 7
3. Covenants of Investors...................................... 7
4. Miscellaneous............................................... 7
4.1 Successors and Assigns...................................... 7
4.2 Amendments and Waivers...................................... 8
4.3 Notices..................................................... 8
4.4 Severability................................................ 8
4.5 Governing Law............................................... 8
4.6 Counterparts................................................ 8
4.7 Titles and Subtitles........................................ 8
4.8 Aggregation of Stock........................................ 8
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NORTHWEST BIOTHERAPEUTICS, INC.
SERIES D
INVESTORS' RIGHTS AGREEMENT
This Series D Investors' Rights Agreement (the "Agreement") is made as of
the day of , 2000, by and among Northwest Biotherapeutics,
Inc., a Delaware corporation (the "Company"), and the Series D Preferred Stock
investors listed on Exhibit A hereto, each of which is herein referred to as a
"Series D Investor."
RECITALS
A. The Company and its Series A Investors, Series B Investors and Series C
Investors entered into an Investors' Rights Agreement dated as of February 1999
(the "Amended and Restated Rights Agreement") in order to provide such investors
with certain rights to receive or inspect information pertaining to the Company.
B. The Series D Investors have subscribed for shares of Series D Preferred
Stock pursuant to the Confidential Private Placement Memorandum dated October
2000 and the stock purchase agreement related thereto (collectively, the
"Subscription Agreements"). A condition to the Series D Investors' obligations
under the Subscription Agreements is that the Company and the Series D Investors
enter into this Agreement in order to provide the Series D Investors with (i)
certain rights to register shares of the Company's Common Stock issuable upon
conversion of the Series D Preferred Stock held by the Series D Investors and
(ii) certain rights to receive or inspect information pertaining to the Company.
AGREEMENT
The parties hereby agree as follows:
1. Registration Rights. The Company and the Series D Investors covenant and
agree as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the shares of
Common Stock issuable or issued upon conversion of the Series D
Preferred Stock of the Company and (ii) any other shares of Common Stock
of the Company issued as (or issuable upon the conversion or exercise of
any warrant right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in replacement
of, the shares listed in (i); provided, however, that the foregoing
definition shall exclude in all cases any Registrable Securities sold by
a person in a transaction in which his or her rights under this
Agreement are not assigned. Notwithstanding the foregoing, Common Stock
or other securities shall only be treated as Registrable Securities if
and so long as they have not been (A) sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section
4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such
sale;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are,
Registrable Securities;
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(d) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.10 of this Agreement;
(e) The term "SEC" means the Securities and Exchange Commission;
and
(f) The term "IPO" means a firm commitment underwritten public
offering by the Company of shares of its Common Stock pursuant to a
registration statement on Form S-1 under the Securities Act.
1.2 Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Securities Act in connection with the public offering of
such securities solely for cash (other than a registration relating solely
to the sale of securities to participants in a Company stock plan or a
transaction covered by Rule 145 under the Securities Act, a registration in
which the only stock being registered is Common Stock issuable upon
conversion of debt securities which are also being registered, or any
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at
such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 4.3, the
Company shall, subject to the provisions of Section 1.6, cause to be
registered under the Securities Act all of the Registrable Securities that
each such Holder has requested to be registered.
1.3 Obligations of the Company. Whenever required under this Section
1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one
hundred twenty (120) days. The Company shall not be required to file,
cause to become effective or maintain the effectiveness of any
registration statement that contemplates a distribution of securities on
a delayed or continuous basis pursuant to Rule 415 under the Securities
Act.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for up to one hundred
twenty (120) days.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering, each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as
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then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, such obligation to continue for one hundred
twenty (120) days.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date
of such registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to
this Section 1, if such securities are being sold through underwriters,
or, if such securities are not being sold through underwritten the date
that the registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance
as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountant, of
the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition
of such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
1.5 Expenses of Registration. All expenses for each Holder (which
right may be assigned as provided in Section 1.10), other than underwriting
discounts and commissions incurred in connection with the first four (in
the aggregate) registrations, filings or qualifications of Registrable
Securities pursuant to Section 1.2, including (without limitation) all
registration, filing, and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company and the reasonable
fees and disbursements of one counsel for the selling Holder or Holders
selected by them with the approval of the Company, which approval shall not
be unreasonably withheld, shall be borne by the Company.
1.6 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.2 to include any of the
Holders' securities in such underwriting unless they accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters),
and then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Company.
If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the
amount of securities sold other than by the Company that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by
such selling stockholders) but in no event shall the amount of securities
of the selling Holders included in the offering be reduced below twenty
percent (20%) of the total amount of securities included in such offering,
unless such offering is the initial public offering of the Company's
securities, in which case the selling stockholders may be excluded if the
underwriters make the determination described above and no other
stockholder's securities are included. For purposes of the
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preceding parenthetical concerning apportionment, for any selling
stockholder which is a holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and stockholders
of such holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling stockholder," and any pro
rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by
all entities and individuals included in such "selling stockholder," as
defined in this sentence.
1.7 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.8 Indemnification. In the event any Registrable Securities an
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder
or underwriter within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against any losses, claims, damages, or liabilities (joint or several)
to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule
or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law; and the Company will pay to each such Holder,
underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection
1.8(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable to any Holder,
underwriter or controlling person for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Securities Act,
any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or
liabilities (joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.8(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder,
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which consent shall not be unreasonably withheld; provided, that in no
event shall any indemnity under this subsection 1.8(b) exceed the net
proceeds from the offering received by such Holder, except in the case
of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
1.8, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.8, but the omission so to
deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than
under this Section 1.8.
(d) If the indemnification provided for in this Section 1.8 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability,
claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by a
Holder under this subsection 1.8(d) exceed the net proceeds from the
offering received by such Holder, except in the case of willful fraud by
such Holder. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties, relative intent knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and
otherwise.
1.9 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at
any time permit a Holder to sell securities of the Company to the public
without registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed
by the Company for the offering of its securities to the general public
so long as the
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Company remains subject to the periodic reporting requirements under
Sections 13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of
SEC Rule 144 (at any time after ninety (90) days after the effective
date of the first registration statement filed by the Company), the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as
may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
1.10 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may
be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of at least 275,350 shares of such securities unless
such transferee or assignee is a partner or affiliate of the Holder in
which case no minimum shareholdings are required, or all of such
transferring Holder's securities, if less than 275,350 shares, provided,
the Company is promptly furnished with written notice of the name and
address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; and provided, further,
that such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. For the purposes of
determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who arc partners or retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the
partnership; provided that all assignees and transferees who would not
qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
1.11 "Market Stand-Off" Agreement. Each Holder hereby agrees that,
during the period of duration (up to 180 days in the case of an initial
public offering and up to 90 days in the case of all other public
offerings) specified by the Company and an underwriter of Common Stock or
other securities of the Company, following the effective date of a
registration statement of the Company filed under the Securities Act, it
shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it at any time
during such period except Common Stock included in such registration;
provided, however, that all officers and directors of the Company enter
into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such period, and each Holder
agrees that, if so requested, such Holder will execute an agreement in the
form provided by the underwriter containing terms which are essentially
consistent with the provisions of this Section 1.11.
Notwithstanding the foregoing, the obligations described in this
Section 1.11 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be
promulgated in the future, or a registration relating solely to an SEC Rule
145 transaction on Form S-4 or similar forms which may be promulgated in
the future.
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1.12 Termination of Registration Rights. No Holder shall be entitled
to exercise any right provided for in this Section 1 after the earlier of
(i) five (5) years following the consummation of an IPO, or (ii) such time
as Rule 144 or another similar exemption under the Securities Act is
available for the sale of all of such Holder's shares during a three
(3)-month period without registration.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver to
each Holder of at least 165,000 shares of Registrable Securities (other
than a Holder reasonably deemed by the Company to be a competitor of the
Company):
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company and
statement or stockholder's equity as of the end of such year, and a
statement of cash flows for such year, such year-end financial reports
to be in reasonable detail, prepared in accordance with generally
accepted accounting principles ("GAAP"), and audited and certified by an
independent public accounting firm of nationally recognized standing
selected by the Company;
(b) as soon as practicable, but in any event within thirty (30)
days after the end of each of the first three (3) quarters of each
fiscal year of the Company, an unaudited profit or loss statement, a
statement of cash flows for such fiscal quarter and an unaudited balance
sheet as of the end of such fiscal quarter, and
(c) as soon as practicable, but in any event thirty (30) days prior
to the end of each fiscal year, a budget for the next fiscal year,
prepared on a monthly basis.
2.2 Inspection. The Company shall permit each Holder of at least
165,000 shares of Registrable Securities (except for a Holder reasonably
deemed by the Company to be a competitor of the Company), at such Holder's
expense, to visit and inspect the Company's properties, to examine its
books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be
requested by the Series D Investor; provided, however, that the Company
shall not be obligated pursuant to this Section 2.2 to provide access to
any information which it reasonably considers to be a trade secret or
similar confidential information,
2.3 Termination of Covenants.
(a) The covenants set forth in Sections 2.1 and 2.2 shall terminate
as to each Holder and be of no further force or effect (i) immediately
prior to the consummation of an IPO, or (ii) when the Company shall
sell, convey, or otherwise dispose of or encumber all or substantially
all of its property or business or merge into or consolidate with any
other corporation (other than a wholly-owned subsidiary corporation) or
effect any other transaction or series of related transactions in which
more than fifty percent (50%) of the voting power of the Company is
disposed of, provided that this subsection (ii) shall not apply to a
merger effected exclusively for the purpose of changing the domicile of
the Corporation.
(b) The covenants set forth in Sections 2.1 and 2.2 shall terminate
as to each Holder and be of no further force or effect when the Company
first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act, if this occurs earlier than the events
described in Section 2.3(a) above.
3. Covenants of Investors. The Series D Investor may be permitted, subject
to compliance with applicable securities laws, to sell, transfer, distribute or
grant participations to another person or party with respect to any or all the
Securities in order to satisfy the requirements of the U.S. Internal Revenue
Service.
4. Miscellaneous.
4.1 Successors and Assigns. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and
assigns of the parties (including transferees of the Preferred Stock or any
class or series or
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any Common Stock issued upon conversion thereof). Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
4.2 Amendments and Waivers. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the holders of a
majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon
each bolder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
4.3 Notices. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier
or sent by telegram or fax, or forty-eight (48) hours after being deposited
in the U.S. mail, as certified or registered mail, with postage prepaid,
and addressed to the party to be notified at such party's address or fax
number as set forth on the signature page or on Exhibit A hereto or as
subsequently modified by written notice.
4.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the patties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (a) such provision shall be excluded from this Agreement,
(b) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (c) the balance of the Agreement shall be enforceable
in accordance with its terms.
4.5 Governing Law. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance
with the laws of the State of
Washington, without giving effect to
principles of conflicts of laws.
4.6 Counterparts. This Agreement 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.
4.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 Aggregation of Stock. All shares of the Preferred Stock held or
acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights tinder this
Agreement.
[Signature page follows]
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The parties have executed this Investors' Rights Agreement as of the date
first above written.
COMPANY: SERIES D INVESTOR:
NORTHWEST BIOTHERAPEUTICS, INC. By:
By: -----------------------------------------------------
Name:----------------------------------------------
----------------------------------------------------- (print)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President Title:-----------------------------------------------
Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9
12
EXHIBIT A
LIST OF INVESTORS - SERIES D PREFERRED
▇▇▇▇ ▇▇▇▇ 6,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 60,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,000
Chetron Enterprise LLP 2,000
Lochmar Enterprise LLP 2,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,400
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Trust DTD
12/18/87 5,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TTEE, The ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ Trust UA DTD 10/29/93 10,000
Tenwall Investment Co. 15,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 18,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. 2,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ 4,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 10,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 40,000
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 6,000
▇▇▇▇ ▇. ▇▇▇▇▇▇ 10,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 30,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000
E3 Investment Associates 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇ 500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ 2,000
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇ TEN 5,000
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and M. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 10,000
Prudential Securities C/F ▇▇▇▇ ▇▇▇▇▇▇
del ▇▇▇▇▇▇▇ 20,000
The ▇▇▇▇▇▇▇▇ Family Trust dtd 7/16/98 2,000
▇▇▇▇▇ ▇. ▇▇▇▇ 10,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇ TEN 7,000
▇. ▇. ▇▇▇▇▇, ▇▇. 2,000
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 2,000
Prudential Securities C/F ▇▇▇▇▇ ▇.
▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, his separate
property 22,460
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 2,000
▇▇▇▇▇▇ & ▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇▇▇▇ 5,000
Marc and ▇▇▇▇ ▇▇▇▇▇▇▇▇ 6,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 3,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 10,000
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ and ▇▇▇▇ ▇.
▇'▇▇▇▇▇ 15,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,000
Prudential Securities C/F ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ 2,000
Prudential Securities C/F ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ 2,000
Prudential Securities C/F ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ 3,100
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,000
Prudential Securities C/F ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ Rollover 5,000
Marnix L. and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 10,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 12,000
A-2
14
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, his separate
property 25,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 3,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CLU, Inc. Profit
Sharing Plan 5,000
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 2,000
Marinesa ▇. ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 6,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 10,000
Prize Indemnity Ltd. 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 200,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,000
SCA Promotions, Inc. 5,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 25,000
▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,400
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000
Marnix L. and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 6,000
▇▇▇▇▇ ▇▇▇▇▇▇ 4,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 10,000
A-3
15
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 4,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇,
JT TEN 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ MD Pension & Profit
Sharing Trust DTD 6/19/81 15,000
Medarex, Inc. 800,000
▇. ▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇▇▇ TTEES
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin 401K Profit
Sharing Plan dtd 10/26/90 FBO ▇▇▇▇▇▇
▇▇▇▇ 10,000
▇▇▇▇▇▇ ▇▇▇▇ ACF ▇▇▇▇▇▇▇ ▇▇▇▇
U/NY/UGMA 5,000
▇▇▇▇▇▇ ▇▇▇▇ ACF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ U/NY/UGMA 5,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ 2,000
▇. ▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇▇▇ TTEES
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin 401 K Profit
Sharing Plan dtd 10/26/90 FBO ▇▇▇▇▇▇▇
▇▇▇▇▇▇ 2,000
▇. ▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇▇▇ TTEES
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin 401K Profit
Sharing Plan dtd 10/26/90 FBO ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ 2,000
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇ TTEE FBO ▇▇▇▇▇
▇▇▇▇▇▇ Trust dtd 5/8/96 10,000
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇ TTEE FBO ▇▇▇▇
▇▇▇▇ Trust dtd 5/8/96 10,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TTEE ▇▇▇▇▇ ▇▇▇▇▇
Family Trust 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TTEE ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Family Trust 10,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 40,000
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Foundation, Inc. 40,000
Bella and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Foundation
#2 10,000
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin LLC 50,000
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin, A California
Limited Partnership 50,000
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin Capital
Partners I, L.P. 100,000
A-4
16
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust
U/A/D 12/21/83 5,000
▇▇▇▇▇ ▇. and ▇▇▇ ▇. ▇▇▇▇▇▇ 10,000
Julian ▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,000
Neill and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 40,000
CastleRock Partners, L.P. 110,000
CastleRock Partners II, L.P. 10,000
CastleRock Fund, Ltd. 140,000
CRCK, LLC 140,000
▇▇▇▇▇▇ ▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000
E. ▇▇▇▇ ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,500
▇▇▇▇▇ ▇. House 20,000
▇▇▇▇ ▇▇▇▇▇ 2,000
Hull Capital Corp. P.S. FBO ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 20,000
▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ 2,000
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust #2 10,000
A-5
17
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇▇▇▇▇, M.D. and ▇▇▇▇▇▇ ▇▇▇▇▇ 5,000
▇▇▇▇▇ and Lon Talescknick 2,000
Wafik and ▇▇▇▇ ▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
DDS 5,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,300
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ 5,000
Chetron Enterprise LLP 2,000
▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ TTEES ▇▇▇
and ▇▇▇ ▇▇▇▇▇ Farmly Trust DTD
11/5/97 6,000
Prudential Securities OF ▇▇▇▇ ▇▇▇▇▇▇
del ▇▇▇▇▇▇▇ 8,500
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MD PA Pension Trust 5,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 4,768
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 10,000
Lochmar Enterprise LLP 2,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 5,000
Trust of G. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ DTD 12/20/96 6,000
▇▇▇▇▇▇ ▇. Parque 2,000
▇▇▇▇▇▇ ▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 4,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ MDPC TTEE
Employees Profit Sharing Trust P/S/P
Dtd. 8/31/81 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 15,000
Prudential Securities C/F ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇ 5,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 20,000
A-6
18
Sonz Partners LP 20,000
▇▇▇▇▇▇ ▇▇▇▇▇▇, TTEE fbo The ▇▇▇▇▇▇
▇▇▇▇▇▇ 401(k) Plan dtd 1/1/93 10,000
PITT & CO. FBO: Albertson's Inc.
Profit Sharing Plan 34,000
▇▇▇▇▇ ▇▇▇▇▇▇ as ▇▇▇ Custodian FBO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, SEP ▇▇▇ 2,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Court de Grunne 2,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇▇▇▇▇▇ as ▇▇▇ Custodian FBO:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ 3,000
▇▇▇▇▇ ▇▇▇▇▇▇ as ▇▇▇ Custodian FBO:
▇▇▇▇▇▇ ▇. Law ▇▇▇ 2,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,000
Omnivest (Bermuda) Ltd. 10,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. C/F
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SP ▇▇▇ #73540455 2,000
▇▇▇▇ ▇. ▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇ ▇▇▇▇▇▇ as ▇▇▇ Custodian FBO:
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 5,000
UMBTRU & CO. FBO: Wasatch Ultra
Growth Fund 29,000
UUBTRU & CO. FBO: Wasatch
Global Technology Fund 7,000
▇▇▇▇▇ ▇▇▇▇▇▇ as ▇▇▇ Custodian FBO:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ 5,000
▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000
Westmont Venture Partners, LLC 10,000
▇▇▇▇▇ Webher as ▇▇▇ Custodian FBO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ 5,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 80,000
A-7
