UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
| For the fiscal year ended December 31, 2006 | ||
or | ||
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
| For the transition period from to . | ||
Commission file number 000-33393
NORTHWEST BIOTHERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 94-3306718 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
| 7600 Wisconsin Ave. 7th Floor, Suite 750 Bethesda, MD 20814 (Address of principal executive offices) | 98011 (Zip Code) |
Registrant’s telephone number, Including Area Code:
(240) 497-9024
Securities Registered Pursuant to Section 12(b) of the Act:
None
Securities Registered Pursuant to Section 12(g) of the Act:
Common Stock, $0.001 Par Value
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ Noo
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of thisForm 10-K or any amendment to thisForm 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” inRule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o Accelerated filer o Non-accelerated filerþ
Indicate by check mark whether the registrant is a shell company (as defined inRule 12b-2 of the Act). Yes o No þ
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the Registrant, computed by reference to the closing price on the consolidated transaction reporting system on June 30, 2006 was approximately $16.3 million. This number is provided only for purposes of this Annual Report onForm 10-K and does not represent an admission that any particular person is an affiliate of registrant.
As of March 5, 2007, the Registrant had an aggregate of 65,241,287 shares of common stock issued and outstanding.
Documents Incorporated by Reference: Portions of the Registrant’s Definitive Information Statement relating to the election of directors and other matters in lieu of an annual meeting of stockholders are incorporated by reference into Part III of this Report.
Explanatory Note
Northwest Biotherapeutics, Inc. (the “Company”) is filing this amendment on Form 10-K/A (this “Amendment”) to its Annual Report on Form 10-K for the year ended December 31, 2006, filed with the Securities and Exchange Commission (the “Commission”) on April 17, 2007. This Amendment reflects modifications that we have made in the light of comments from the staff of the Commission in connection with its review of our Annual Report on Form 10-K for the year ended December 31, 2006.
The Commission file number and the address of the Company’s principal executive offices on the cover of the report and the report of the Independent Registered Public Accounting Firm are hereby amended.
Except for the items described above, this Amendment continues to speak as of the date of the original Form 10-K and does not modify, amend or update in any way the financial statements or any other item or disclosures in the original 10-K.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors
Northwest Biotherapeutics, Inc.
Bothell, Washington
Northwest Biotherapeutics, Inc.
Bothell, Washington
We have audited the accompanying balance sheets of Northwest Biotherapeutics, Inc. (a development stage company) as of December 31, 2006 and 2005, and the related statements of operations, stockholders’ equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 2006, and for the period from March 18, 1996 (date of inception) to December 31, 2006. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company has determined that it is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Northwest Biotherapeutics, Inc. (a development stage company) as of December 31, 2006 and 2005, and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2006, and for the period from March 18, 1996 (date of inception) to December 31, 2006, in conformity with accounting principles generally accepted in the United States.
The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company has experienced recurring losses from operations since inception, has a working capital deficit, and has a deficit accumulated during the development stage. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans regarding these matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/S/ PETERSON SULLIVAN PLLC
March 27, 2007
Seattle, Washington
Seattle, Washington
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bothell, State of Washington, on December 3, 2007.
NORTHWEST BIOTHERAPEUTICS, INC.
| By: | /s/ ALTON L. BOYNTON |
Alton L. Boynton
Its: President and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, this report on has been signed below by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | ||||
/s/ ALTON L. BOYNTON, PH.D. Alton L. Boynton, Ph.D. | President and Director (Principal Executive Officer) | December 3, 2007 | ||||
/s/ ANTHONY P. DEASEY Anthony P. Deasey | Chief Financial Officer (Principal Financial and Accounting Officer) | December 3, 2007 | ||||
| Exhibit | ||||
Number | Description | |||
| 3 | .1 | Seventh Amended and Restated Certificate of Incorporation, as amended.(3.1)(2) | ||
| 3 | .2 | Second Amended and Restated Bylaws of the Company.(3.2)(1) | ||
| 3 | .3 | Certificate of Designations, Preferences and Rights of Series A Cumulative Convertible Preferred Stock, as amended. | ||
| 3 | .4 | Certificate of Designations, Preferences and Rights of Series A-1 Cumulative Convertible Preferred Stock. | ||
| 4 | .1 | Form of common stock certificate.(4.1)(2) | ||
| 4 | .2 | Northwest Biotherapeutics, Inc. Stockholders Rights Plan dated February 26, 2002 between the Company and Mellon Investors Services, LLC.(4.2)(3) | ||
| 4 | .3 | Form of Rights Certificate.(4.3)(3) | ||
| 4 | .4 | Rights Agreement Amendment dated April 26, 2004.(4.4)(4) | ||
| 10 | .1 | Amended and Restated Loan Agreement and 10% Promissory Note dated November 14, 2005 in the principal amount of $400,000 as amended and restated on April 14, 2007 between the Company and Toucan Partners, LLC.(10.1)(19) | ||
| 10 | .2 | Second Amended and Restated Loan Agreement and 10% Promissory Note originally dated December 30, 2005, and amended and restated on April 17, 2006 and April 14, 2007 in the principal amount of $250,000 between the Company and Toucan Partners, LLC.(10.2)(19) | ||
| 10 | .3 | Second Amended and Restated Loan Agreement and 10% Promissory Note originally dated March 9, 2006, and as amended and restated on April 17, 2006 and April 14, 2007 in the principal amount of $300,000 between the Company and Toucan Partners, LLC.(10.3)(19) | ||
| 10 | .4 | Form of Loan Agreement and 10% Convertible, Promissory Note dated April 14, 2007 between the Company and Toucan Partners, LLC for cash advances made on October 30, 2006, November 21, 2006, December 21, 2006, January 19, 2007, February 23, 2007, March 16, 2007, March 20, 2007, April 10, 2007 and April 11, 2007.(10.4)(19) | ||
| 10 | .5 | Amended and Restated Investor Rights Agreement dated April 17, 2006.(10.5)(19) | ||
| 10 | .6 | Securities Purchase Agreement, dated March 30, 2006 by and among the Company and the Investors identified therein.(10.6)(6) | ||
| 10 | .7 | Form of Warrant.(10.7)(6) | ||
| 10 | .8 | Warrant to purchase securities of the Company dated April 26, 2004 issued to Toucan Capital Fund II, L.P.(10.8)(7) | ||
| 10 | .9 | Warrant to purchase securities of the Company dated June 11, 2004 issued to Toucan Capital Fund II, L.P.(10.9)(7) | ||
| 10 | .10 | Warrant to purchase securities of the Company dated July 30, 2004 issued to Toucan Capital Fund II, L.P.(10.10)(7) | ||
| 10 | .11 | Warrant to purchase securities of the Company dated October 22, 2004 issued to Toucan Capital Fund II, L.P.(10.11)(8) | ||
| 10 | .12 | Warrant to purchase securities of the Company dated November 10, 2004 issued to Toucan Capital Fund II, L.P.(10.12)(9) | ||
| 10 | .13 | Warrant to purchase securities of the Company dated December 27, 2005 issued to Toucan Capital Fund II, L.P.(10.13)(10) | ||
| 10 | .14 | First Amendment to Warrants between Northwest Biotherapeutics, Inc. and Toucan Capital Fund II, L.P. dated January 26, 2005.(10.14)(1) | ||
| 10 | .15 | Warrant to purchase Series A Preferred Stock dated January 26, 2005 issued to Toucan Capital Fund II, L.P.(10.15)(1) | ||
| 10 | .16 | Warrant to purchase securities of the Company dated April 12, 2005 issued to Toucan Capital Fund II, L.P.(10.16)(11) | ||
| Exhibit | ||||
Number | Description | |||
| 10 | .17 | Warrant to purchase securities of the Company dated May 13, 2005 issued to Toucan Capital Fund II, L.P.(10.17)(12) | ||
| 10 | .18 | Warrant to purchase securities of the Company dated June 16, 2005 issued to Toucan Capital Fund II, L.P.(10.18)(13) | ||
| 10 | .19 | Warrant to purchase securities of the Company dated July 26, 2005 issued to Toucan Capital Fund II, L.P.(10.19)(14) | ||
| 10 | .20 | Warrant to purchase securities of the Company dated September 7, 2005 issued to Toucan Capital Fund II, L.P.(10.20)(15) | ||
| 10 | .21 | Amended Form of Warrant to purchase securities of the Company dated November 14, 2005 and April 17, 2006 as amended April 14, 2006 issued to Toucan Partners, LLC.(10.21)(19) | ||
| 10 | .22 | Form of Warrant to purchase securities of the Company dated April 14, 2007 issued to Toucan Partners, LLC.(10.22)(19) | ||
| 10 | .23 | Amended and Restated Recapitalization Agreement by and between the Company and Toucan Capital Fund II, L.P., as amended.(10.23)(18) | ||
| 10 | .24 | Amended and Restated Binding Term sheet, as amended.(10.24)(18) | ||
| 10 | .25 | Amended and Restated Employment Agreement with Dr. Alton L. Boynton(10.25)(16) | ||
| 10 | .26 | Form of Warrant to purchase common stock of the Company dated November 13, 2003, as amended.(10.26)(18) | ||
| 10 | .27 | Services Proposal between the Company and Cognate Therapeutics, Inc. dated July 30, 2004.(10.27)(7) | ||
| 10 | .28 | 1998 Stock Option Plan.(10.28)(2) | ||
| 10 | .29 | 1999 Executive Stock Option Plan.(10.29)(2) | ||
| 10 | .30 | 2001 Stock Option Plan.(10.30)(2) | ||
| 10 | .31 | 2001 Nonemployee Director Stock Incentive Plan.(10.31)(2) | ||
| 10 | .32 | Employee Stock Purchase Plan.(10.32)(2) | ||
| 10 | .33 | Lease Agreement.(10.33)(18) | ||
| 10 | .34 | Clinical Study Agreement between the Company and the Regents of the University of California dated February 14, 2006.(10.34)(18) | ||
| 11 | .1 | Computation of net loss per share (included in notes to financial statements). | ||
| 23 | .1* | Consent of Peterson Sullivan, PLLC, Independent Registered Accounting Firm. | ||
| 31 | .1* | Certification of President (Principal Executive Officer), Pursuant to Exchange ActRules 13a-14(a) and15d-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||
| 31 | .2* | Certification of Chief Financial Officer (Principal Financial and Accounting Officer), Pursuant to Exchange ActRules 13a-14(a) and15d-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||
| 32 | .1* | Certification of President Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | ||
| 32 | .2* | Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | ||
| * Filed Herewith. | ||
| (1) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K, February 1, 2005. | |
| (2) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’sForm S-1 (Registration No.333-67350). | |
| (3) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’sForm 8-A on July 8, 2002. | |
| (4) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’sForm 10-K on May 14, 2004. | |
| (5) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Quarterly Report onForm 10-Q on November 14, 2005. |
| (6) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on March 31, 2006. | |
| (7) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Quarterly Report onForm 10-Q on November 15, 2004. | |
| (8) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on October 22, 2004. | |
| (9) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on November 10, 2004. | |
| (10) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on December 27, 2004. | |
| (11) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Annual Report onForm 10-K on April 15, 2005. | |
| (12) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8- K on May 18, 2005. | |
| (13) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on June 21, 2005. | |
| (14) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on August 1, 2005. | |
| (15) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on September 9, 2005. | |
| (16) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Quarterly Report onForm 10-Q on November 11, 2003. | |
| (17) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 8-K on August 5, 2005. | |
| (18) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’s Current Report onForm 10-K on April 18, 2006. | |
| (19) | Incorporated by reference to the exhibit shown in the preceding parentheses filed with the Registrant’sForm 10-K on April 17, 2007. |