EXHIBIT 10.3
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
THIS WARRANT SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME ON NOVEMBER
___, 2008 (the "EXPIRATION DATE").
No. __________
NORTHWEST BIOTHERAPEUTICS, INC.
WARRANT TO PURCHASE COMMON SHARES
For VALUE RECEIVED, ____________________ ("Warrantholder"), is entitled
to purchase, subject to the provisions of this Warrant, from Northwest
Biotherapeutics, Inc., a Delaware corporation ("Company"), at any time not later
than 5:00 P.M., Seattle time, on the Expiration Date (as defined above), at an
exercise price per share equal to $0.__ [Insert closing price on date of
closing] (the exercise price in effect being herein called the "Warrant Price"),
______ shares ("Warrant Shares") of the Company's Common Stock, par value $0.001
per share ("Common Stock"). The number of Warrant Shares purchasable upon
exercise of this Warrant and the Warrant Price shall be subject to adjustment
from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of this
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act"), or an exemption from such
registration. Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer and such other documents as
may be reasonably required by the Company, including, if required by the
Company, an opinion of its counsel to the effect that such transfer is exempt
from the registration requirements of the Securities Act, to establish that such
transfer is being made in accordance with the terms hereof, and a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be canceled
by the Company.
Section 3. Exercise.
(a) Manner of Exercise. This Warrant may be exercised at
any time or from time to time, on any business day, for all or part of the full
number of Warrant Shares during the period of time described above, by
surrendering it at the principal office of the Company at 22322 20th Avenue SE,
Suite 150, Bothell, Washington 98021, with the subscription form in the form
attached hereto duly executed, together with payment for the Warrant Shares to
be purchased, payable in cash, cashier's check and/or wire transfer of
immediately available funds. Subject to Section 3(b) below, no other form of
consideration shall be acceptable for the exercise of this Warrant. A Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise together with delivery of
payment therefor as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the record holder of such shares as of the close of business on such
date. As soon as practicable on or after such date, and in any event within 20
days thereof, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
shares of Common Stock issuable upon such exercise. Upon any partial exercise,
the Company will issue and deliver to Holder a new Warrant with respect to the
Warrant Shares not previously purchased. No fractional shares of Common Stock
shall be issued upon exercise of a Warrant. In lieu of any fractional share to
which Holder would be entitled upon exercise, the Company shall pay cash equal
to the product of such fraction multiplied by the then current fair market value
of one share of Common Stock, as determined in good faith by the Company.
(b) Net Exercise. In lieu of cash exercising this
Warrant, Holder may elect to receive Common Stock equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder hereof a number of shares of
Common Stock computed using the following formula:
Y (A - B)
X= ---------
A
Where:
X = The number of shares of Common Stock to be issued to the Holder.
Y = The number of shares of Common Stock purchasable under this
Warrant.
A = The then current Market Price of one share of the Company's Common
Stock at the time of exercise.
B = The Exercise Price (as adjusted to the date of such calculations).
For purposes of this Section 3(b), the Market Price
shall be determined in accordance with the provisions of Section 8(b)
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Section 4. Compliance with the Securities Act of 1933. The Company may
cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's reasonable satisfaction that such tax
has been paid. The holder shall be responsible for income taxes due under
federal, state or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated by
this Section 7, out of the authorized and unissued shares of Common Stock,
sufficient shares to provide for the exercise of the rights of purchase
represented by this Warrant. The Company agrees that all Warrant Shares issued
upon due exercise of the Warrant shall be, at the time of delivery of the
certificates for such Warrant Shares, duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to
time while this Warrant is outstanding, pay a dividend or make a distribution on
its Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
of Common Stock into a smaller number of shares or issue by reclassification of
its outstanding shares of Common Stock any shares of its capital stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), then the number of
Warrant Shares purchasable upon
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exercise of the Warrant and the Warrant Price in effect immediately prior to the
date upon which such change shall become effective, shall be adjusted by the
Company so that the Warrantholder thereafter exercising the Warrant shall be
entitled to receive the number of shares of Common Stock or other capital stock
which the Warrantholder would have received if the Warrant had been exercised
immediately prior to such event upon payment of a Warrant Price that has been
adjusted to reflect a fair allocation of the economics of such event to the
Warrantholder. Such adjustments shall be made successively whenever any event
listed above shall occur.
(b) In case the Company shall fix a payment date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Market Price (as defined below) per share of Common Stock immediately
prior to such payment date, less the fair market value (as determined by the
Company's Board of Directors in good faith) of said assets or evidences of
indebtedness so distributed, or of such subscription rights or warrants, and the
denominator of which shall be the total number of shares of Common Stock
outstanding multiplied by such Market Price per share of Common Stock
immediately prior to such payment date. "Market Price" as of a particular date
(the "Valuation Date") shall mean the following: (a) if the Common Stock is then
listed on a national stock exchange, the closing sale price of one share of
Common Stock on such exchange on the last trading day prior to the Valuation
Date; (b) if the Common Stock is then quoted on The Nasdaq Stock Market, Inc.
("Nasdaq"), the closing sale price of one share of Common Stock on Nasdaq on the
last trading day prior to the Valuation Date or, if no such closing sale price
is available, the average of the high bid and the low asked price quoted on
Nasdaq on the last trading day prior to the Valuation Date; (c) if the Common
Stock is not then listed on a national stock exchange or quoted on Nasdaq, the
average of the high bid and the low ask price quoted on the OTC Bulletin Board
on the last trading day prior to the Valuation Date; or (d) if the Common Stock
is not then listed on a national stock exchange or quoted on Nasdaq or the OTC
Bulletin Board, the fair market value of one share of Common Stock as of the
Valuation Date, shall be determined in good faith by the Board of Directors of
the Company. Such adjustment shall be made successively whenever such a payment
date is fixed.
(c) In the event that, as a result of an adjustment made
pursuant to this Section 8, the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
(d) Except as provided in subsection (e) of this Section
8, if and whenever the Company shall issue or sell, or is, in accordance with
any of subsections (d)(l) through (d)(6)
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hereof, deemed to have issued or sold, any shares of Common Stock for no
consideration or for a consideration per share less than the Warrant Price in
effect immediately prior to the time of such issue or sale, then and in each
such case (a "Trigger Issuance") the then-existing Warrant Price, shall be
reduced, as of the close of business on the effective date of the Trigger
Issuance, to the lowest price per share at which any share of Common Stock was
issued or sold or deemed to be issued or sold.
For purposes of this subsection (d), "Additional Shares of
Common Stock" shall mean all shares of Common Stock issued by the Company or
deemed to be issued pursuant to this subsection (d), other than Excluded
Issuances (as defined in subsection (e) hereof).
For purposes of this subsection (d), the following subsections
(d)(l) to (d)(6) shall also be applicable:
(d)(1) Issuance of Rights or Options. In case at any
time during the term of this Warrant the Company shall in any
manner grant (directly and not by assumption in a merger or
otherwise) any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or
any stock or security convertible into or exchangeable for
Common Stock (such warrants, rights or options being called
"Options" and such convertible or exchangeable stock or
securities being called "Convertible Securities") whether or
not such Options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
exercise of such Options or upon the conversion or exchange of
such Convertible Securities (determined by dividing (i) the
sum (which sum shall constitute the applicable consideration)
of (x) the total amount, if any, received or receivable by the
Company as consideration for the granting of such Options,
plus (y) the aggregate amount of additional consideration
payable to the Company upon the exercise of all such Options,
plus (z), in the case of such Options which relate to
Convertible Securities, the aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than
the Warrant Price in effect immediately prior to the time of
the granting of such Options, then the total number of shares
of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange of the total amount of such
Convertible Securities issuable upon the exercise of such
Options shall be deemed to have been issued for such price per
share as of the date of granting of such Options or the
issuance of such Convertible Securities and thereafter shall
be deemed to be outstanding for purposes of adjusting the
Warrant Price. Except as otherwise provided in subsection
8(d)(3), no adjustment of the Warrant Price shall be made upon
the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual
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issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
(d)(2) Issuance of Convertible Securities. In case
the Company shall during the term of this Warrant in any
manner issue (directly and not by assumption in a merger or
otherwise) or sell any securities convertible into Common
Stock, whether or not the rights to exchange or convert any
such Convertible Securities are immediately exercisable, and
the price per share for which Common Stock is issuable upon
such conversion or exchange (determined by dividing (i) the
sum (which sum shall constitute the applicable consideration)
of (x) the total amount received or receivable by the Company
as consideration for the issue or sale of such Convertible
Securities, plus (y) the aggregate amount of additional
consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (ii) the total number of
shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less
than the Warrant Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares
of Common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to have been
issued for such price per share as of the date of the issue or
sale of such Convertible Securities and thereafter shall be
deemed to be outstanding for purposes of adjusting the Warrant
Price, provided that (a) except as otherwise provided in
subsection 8(d)(3), no adjustment of the Warrant Price shall
be made upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities and (b)
no further adjustment of the Warrant Price shall be made by
reason of the issue or sale of Convertible Securities upon
exercise of any Options to purchase any such Convertible
Securities for which adjustments of the Warrant Price have
been made pursuant to the other provisions of subsection 8(d).
(d)(3) Change in Option Price or Conversion Rate.
Upon the happening of any of the following events, namely, if
the purchase price provided for in any Option referred to in
subsection 8(d)(l) hereof, the additional consideration, if
any, payable upon the conversion or exchange of any
Convertible Securities referred to in subsections 8(d)(l) or
8(d)(2), or the rate at which Convertible Securities referred
to in subsections 8(d)(l) or 8(d)(2) are convertible into or
exchangeable for Common Stock shall change at any time
(including, but not limited to, changes under or by reason of
provisions designed to protect against dilution), the Warrant
Price in effect at the time of such event shall forthwith be
readjusted to the Warrant Price which would have been in
effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may
be, at the time initially granted, issued or sold. On the
termination of any Option for which any adjustment was made
pursuant to this subsection 8(d) or any right to convert or
exchange Convertible Securities for which any adjustment was
made pursuant to this subsection 8(d) (including without
limitation upon the redemption or purchase for consideration
of such Convertible Securities by the
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Company), the Warrant Price then in effect hereunder shall
forthwith be changed to the Warrant Price which would have
been in effect at the time of such termination had such Option
or Convertible Securities, to the extent outstanding
immediately prior to such termination, never been issued.
(d)(4) Stock Dividends. Subject to the provisions of
this Section 8(d), in case the Company shall during the term
of this Warrant declare a dividend or make any other
distribution upon any stock of the Company (other than the
Common Stock) payable in Common Stock, Options or Convertible
Securities, then any Common Stock, Options or Convertible
Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued
or sold without consideration.
(d)(5) Record Date. In case the Company shall take a
record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities or
(ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed
to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or
purchase, as the case may be.
(d)(6) Treasury Shares. The number of shares of
Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company or
any of its wholly-owned subsidiaries, and the disposition of
any such shares (other than the cancellation or retirement
thereof) shall be considered an issue or sale of Common Stock
for the purpose of this subsection (d).
(e) Anything herein to the contrary notwithstanding, the
Company shall not be required to make any adjustment of the Warrant Price in the
case of the issuance of (A) capital stock, Options or Convertible Securities
issued to directors, officers, employees or consultants of the Company in
connection with their service as directors of the Company, their employment by
the Company or their retention as consultants by the Company pursuant to an
equity compensation program approved by the Board of Directors of the Company or
the compensation committee of the Board of Directors of the Company, (B) shares
of Common Stock issued upon the conversion or exercise of Options or Convertible
Securities issued prior to the date hereof, (C) shares of Common Stock issued
upon the conversion of the secured promissory notes, dated as of the date of the
initial issuance of this Warrant, in an aggregate principal amount of
$_______________ (the "Notes"), (D) shares of Common Stock issued upon the
exercise of this Warrant and the other warrants issued in connection with the
issuance of the Notes and initially covering an aggregate of ___________ shares
of Common Stock (collectively, the "Company Warrants"), and (E) shares of Common
Stock issued or issuable by reason of a dividend, stock split or other
distribution on shares of Common Stock (but only to the extent that such a
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dividend, split or distribution results in an adjustment in the Warrant Price
pursuant to the other provisions of this Warrant) (collectively, "Excluded
Issuances").
(f) Upon any adjustment to the Warrant Price pursuant to
Section 8(d) above, the number of Warrant Shares purchasable hereunder shall be
adjusted by multiplying such number by a fraction, the numerator of which shall
be the Warrant Price in effect immediately prior to such adjustment and the
denominator of which shall be the Warrant Price in effect immediately
thereafter.
Section 9. Conversion. The Company shall deliver to the Holder notice
of any merger, consolidation, acquisition of all or substantially all of the
property or stock, reorganization or liquidation of the Company (collectively a
"Reorganization"), as a result of which the stockholders of the Company are to
receive cash, stock or other property in exchange for Common Stock, no less than
twenty (20) business days before the date scheduled for the Reorganization.
Unless the Holder exercises this Warrant as provided in Section 3(a) prior to
the date of the Reorganization, this Warrant shall be automatically converted as
provided in Section 3(b) upon the effective date of the Reorganization.
Section 10. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of this Warrant. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this Section 10, be deliverable upon such exercise, the Company, in
lieu of delivering such fractional share, shall pay to the exercising holder of
this Warrant an amount in cash equal to the Market Price of such fractional
share of Common Stock on the date of exercise.
Section 11. Benefits. Nothing in this Warrant shall be construed to
give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment.
Section 13. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is Mellon Investor Services LLC. Upon the appointment of any
subsequent transfer agent for the Common Stock or other shares of the Company's
capital stock issuable upon the exercise of the rights of purchase represented
by the Warrant, the Company will mail to the Warrantholder a statement setting
forth the name and address of such transfer agent.
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Section 14. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Northwest Biotherapeutics, Inc.
22322 20th Avenue S.E., Suite 150
Bothell, Washington 98021
Attention: Alton L. Boynton
Fax:
With a copy to:
Lane Powell Spears Lubersky LLP
1420 Fifth Avenue, Suite 4100
Seattle, Washington 98101-2338
Attention: Thomas F. Grohman
Fax: (206) 223-7107
Section 15. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 16. Applicable Law; Dispute Resolution; Exclusive Procedure.
(a) Governing Law.
This Subscription Agreement and all rights hereunder shall be governed
by, and interpreted in accordance with, the laws of the State of Washington.
(b) Dispute Resolution; Exclusive Procedure.
(1) Exclusive Procedure. Every controversy,
claim, dispute or disagreement arising with respect to the formation,
interpretation, performance, or breach of this Agreement, or any amendment
hereto, (any "Dispute") will be resolved in accordance with this
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Section 16(b), which sets forth the sole and exclusive procedure for the
resolution of any Dispute.
(2) Injunctive Relief. Notwithstanding anything
herein to the contrary, the Company or the Warrantholder may, prior to invoking
the procedure called for in this Section 16(b), seek a temporary restraining
order or a preliminary injunction (an "Injunctive Action") pursuant to this
paragraph. The Superior Court of the State of Washington in King County shall be
the exclusive venue and have exclusive jurisdiction for all such Injunctive
Actions. The Warrantholder and the Company stipulate and agree for the purposes
of any Injunctive Action that all real and personal property of the Company and
the Warrantholder relevant to such Injunctive Action will be deemed to be within
the jurisdiction of the Superior Court of the State of Washington in King
County. Other than the foregoing stipulation regarding matters and property
subject to Injunctive Action, any party bringing an Injunctive Action pursuant
to this agreement must make a showing of the requisites for such Injunctive
Action in such court. This provision for Injunctive Actions is the sole and
exclusive process by which any party shall maintain any Injunctive Action, and
shall be limited to those cases in which emergency access to the court is
necessary to prevent immediate and irreparable harm in the interim period until
the agreed upon dispute resolution provisions of this Section 16(b) can be
carried out.
(3) Negotiation. The Warrantholder or the
Company, seeking resolution of a Dispute, must request in writing that a good
faith negotiation ("Negotiation Effort") be carried on following any request for
a Negotiation Effort, the Company and the Warrantholder shall negotiate in good
faith for a period of thirty (30) days (the "Negotiation Period"). The
Negotiation Effort may be conducted in person, by telephone, or by such other
means as the Designated Representatives agree will tend to lead toward an
amicable resolution of the Dispute. Should a Negotiation Effort fail to produce
a resolution within the Negotiation Period, the parties may agree to extend the
Negotiation Period for a fixed time if each agrees that such an extension could
reasonably lead to an amicable resolution.
(4) Mediation. Should a Negotiation Effort fail
to produce a resolution within the Negotiation Period and any extension thereof,
then either the Warrantholder or the Company, if wishing to further pursue
resolution of the Dispute, must initiate mediation by providing to Judicial
Arbitration Mediation Services ("JAMS"), or its successor, in Seattle,
Washington and to the other party a written request for mediation pursuant to
this Section, setting forth the subject of the Dispute and the relief requested
within fifteen (15) days of the end of the Negotiation Period and any extension
thereof. A mediation (the "Mediation") shall be conducted pursuant to the
mediation procedures contained in the then published Commercial Arbitration
Rules and Mediation Procedures of the American Arbitration Association ("AAA").
The Designated Representatives shall cooperate with JAMS and with one another in
selecting a mediator from JAMS' panel of neutrals, but if the parties cannot
agree on a mediator within seven (7) days from the date of the request for
mediation then the parties shall each select a designee from among the JAMS
panel of neutrals, and those designees shall in turn select, from among the JAMS
panel of neutrals, the single mediator who shall conduct the mediation (the
"Mediator"). The Mediator shall have experience with corporate law. The
Mediation will be conducted within forty-five (45) days of the expiration of the
Negotiation Period and any
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extension thereof unless otherwise agreed by the parties (the "Mediation
Period"). The Mediator may conduct meetings or hearings in Seattle, Washington,
or by telephone or teleconference, and request information from the parties as
he or she deems necessary, and shall, if the matter remains unresolved through
such mediation, issue written recommendations to the parties within fifteen (15)
days of the end of the Mediation Period. The parties shall then confer and
determine, within seven (7) days of the issuance of the mediator's written
recommendations, whether the mediator's recommendations are agreeable to the
Company and the Warrantholder. Each party shall bear its own costs of the
Mediation, and the mediator's fee shall be divided evenly between the
Warrantholder and the Company. The parties agree that Federal and State Evidence
Rule 408 shall apply to all statements, information and documents exchanged or
discussed as part of the negotiation or mediation processes herein in any
arbitration or litigation proceeding involving the parties, provided that
evidence that is otherwise admissible or discoverable will not be rendered
inadmissible or non-discoverable as a result of its use in the Negotiation
Effort or Mediation.
(5) Binding Arbitration.
(i) If after the mediation procedures
called for in this Section 16(b), the Dispute remains unresolved, either party,
if wishing to further pursue a resolution of the Dispute, must initiate binding
arbitration, before a single arbitrator, by providing to JAMS, or its successor,
in Seattle, Washington and to the other party a written request for binding
arbitration pursuant to this Section, setting forth the subject of the Dispute
and the relief requested within thirty (30) days of the expiration of the seven
day period following the issuance of the Mediator's written recommendations.
(ii) The parties shall then cooperate
with JAMS and with one another in selecting an arbitrator from JAMS' panel of
neutrals, but if the parties cannot agree on an arbitrator within seven (7)
days, then each party shall select a designee from among the JAMS panel of
neutrals, and those designees shall in turn select, from among the JAMS panel of
neutrals, the single arbitrator who shall hear the matter in arbitration (the
"Arbitrator"). The Arbitrator shall have experience with corporate law.
(iii) The arbitration shall be conducted
in Seattle, Washington under the arbitration rules contained in the then
published Commercial Arbitration Rules and Mediation Procedures of the AAA,
except as such are inconsistent with the explicit provisions herein (the
"Arbitration"). The arbitration hearing shall be conducted within thirty (30)
days of the appointment of the Arbitrator unless otherwise agreed by the parties
(the "Arbitration Period").
(iv) The Arbitrator shall have full
discretion to regulate discovery so as to provide for prompt, efficient, and
fair resolution of the claims, disputes and matters in question; consistent with
this and the timelines above, discovery may be had by either party pursuant to
the provisions of the Federal Rules of Civil Procedure. During the conduct of
the arbitration proceedings, the Arbitrator shall have full discretion
concerning the admissibility and relevance of evidence, being guided in
exercising such discretion by the principles set out in
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the Federal Rules of Evidence rather than any other body of evidentiary law as
defined by state common law, codes or rules of evidence.
(v) The Arbitrator shall, within thirty
(30) days following the close of the Arbitration Period, issue an award that
shall be binding upon the parties and judgment on the award may be entered in
any court of appropriate jurisdiction. The arbitration award must be in writing
and must explain the reasons for the decision. The Arbitrator may, but will not
be bound to, make findings of fact or conclusions of law. Each party shall bear
its own costs in such arbitration, and the Arbitrator's fee shall be divided
evenly between the Company and the Warrantholder.
(6) Interim Payment of Fees and Expenses. The
Company and the Warrantholder agree and understand that during any mediation or
arbitration conducted pursuant to this Section 16(b), JAMS may, from time to
time, assess each party for its share of JAMS' fees and expenses and the fees
and expenses of the Mediator or Arbitrator; it is also understood that JAMS will
likely make such requests for payment in advance of the various stages of the
proceedings conducted by the Mediator or Arbitrator. If any such request for
fees and expenses is not honored promptly by a party (a "Default"), and such
Default results in the delay or postponement of any scheduled activities (e.g.,
discovery, pre-hearing conferences, hearings, etc.), then (i) if during
mediation, at the written election of any party not in Default the Mediation
Period may be deemed to be terminated immediately, and (ii) if during
arbitration the Arbitrator may receive submissions from the parties and factual
information from JAMS about amounts due and owing by the parties. Upon
consideration thereof, the Arbitrator is authorized to issue written conclusions
that the Default constitutes a breach by the defaulting party of its obligation
to arbitrate in good faith and to issue an award of sanctions (up to and
including entry of a default judgment) against such party based on that
conclusion (a "Default Award"). Any Default Award shall be binding upon the
parties as an independent final arbitration award on the issue of that Default
and judgment on the award may be entered in any court of appropriate
jurisdiction. In the case of an arbitration proceeding, the non-defaulting party
may elect to proceed with arbitration under the relevant procedures contained in
the then published Commercial Arbitration Rules and Mediation Procedures of the
AAA for conducting arbitration in the absence of a party or representative.
(7) Confidentiality. The negotiation, mediation
and arbitration proceedings will be private and confidential. The parties shall
not disclose the pleading, discovery materials, transcripts, testimony,
documents or other information created, produced or presented in the
negotiation, mediation or arbitration to the press, the public or to any third
person, except to legal counsel and their employees, experts and others who need
to know such information in order to assist in the presentation of or
participation in negotiation, mediation or arbitration, without written consent
of the other parties or order of the Arbitrator. Nothing in this provision shall
be deemed to restrict a party's use or disclosure of documents (i) which are its
own, (ii) which are or have been lawfully obtained independent of discovery in
the negotiations, mediation, or arbitration, (iii) which are or become generally
available to the public through no act of the receiving party, (iv) which have
been lawfully obtained from a source other than the other party, (v) which are
reasonably necessary to be disclosed in connection with a proceeding
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or lawsuit contemplated by this Section 16(b), or (vi) which are required to be
disclosed by law, court order or subpoena. The Arbitrator may impose such
sanctions as are deemed by the Arbitrator to be appropriate for violation of
this provision.
Section 17. Call Provision. Notwithstanding any other provision
contained herein to the contrary, in the event that (i) the closing bid price of
a share of Common Stock as traded on Nasdaq (or such other exchange, stock
market or quotation service on which the Common Stock may then be primarily
listed or quoted) equals or exceeds $1.25 (appropriately adjusted for any stock
split, reverse stock split, stock dividend or other reclassification or
combination of the Common Stock occurring after the date hereof) for twenty (20)
consecutive trading days; or (ii) holders of at least 50% of the aggregate
Warrant shares of this series elect to voluntarily exercise or convert such
Warrant share to common stock pursuant to the procedures set forth in Section 3,
the Company, upon thirty (30) days prior written notice (the "Notice Period")
given to the Warrantholder immediately following such twenty (20) trading day
period, may demand that the Warrantholder exercise its rights hereunder, and the
Warrantholder must exercise its rights prior to the expiration of the Notice
Period or if such exercise is not made or if only a partial exercise is made,
any and all rights to further exercise rights hereunder shall cease upon the
expiration of the Notice Period; provided, however, that the Company
simultaneously calls all Warrants of this series on the same terms.
Section 18. Registration Rights. In the event that the Company, during
the term of this Warrant, engages in a Qualifying Financing, as such term is
defined in the secured convertible promissory note dated of even date herewith,
and investors purchasing such Qualifying Financing receive registration rights
with respect to securities purchased in that financing, then the Warrantholder
shall be entitled to registration rights with respect to the shares receivable
under this Warrant, such rights to be not less favorable to the Warrantholder
than those afforded to investors in the Qualifying Financing.
Section 19. No Rights as Stockholder. Prior to the exercise of this
Warrant, the Warrantholder shall not have or exercise any rights as a
stockholder of the Company by virtue of its ownership of this Warrant.
Section 20. Amendment; Waiver. Any term of this Warrant may be amended
or waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the holders of Company
Warrants representing at least 50% of the number of shares of Common Stock then
subject to all outstanding Warrants of this series (the "Majority Holders");
provided, that (x) any such amendment or waiver must apply to all Company
Warrants; and (y) the number of Warrant Shares subject to this Warrant, the
Warrant Price and the Expiration Date may not be amended, and the right to
exercise this Warrant may not be altered or waived, without the written consent
of the Warrantholder.
Section 21. Section Headings. The section headings in this Warrant are
for the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed, as of the ______ day of November 2003.
NORTHWEST BIOTHERAPEUTICS, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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APPENDIX A
NORTHWEST BIOTHERAPEUTICS, INC.
WARRANT EXERCISE FORM
To: Northwest Biotherapeutics, Inc.:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
________________________________
Name
________________________________
Address
________________________________
________________________________
Federal Tax ID or Social Security No.
and delivered by (certified mail to the above address, or (electronically
(provide DWAC instructions:___________________), or (other (specify):
______________________________), and, if the number of Warrant Shares shall not
be all the Warrant Shares purchasable upon exercise of the Warrant, that a new
Warrant for the balance of the Warrant Shares purchasable upon exercise of this
Warrant be registered in the name of the undersigned Warrantholder or the
undersigned's Assignee as below indicated and delivered to the address stated
below.
Dated: ___________________, ____
Note: The signature must correspond with Signature:______________________
the name of the registered holder as written
on the first page of the Warrant in every ______________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. ________________________________
________________________________
Address
________________________________
Federal Identification or
Social Security No.
Assignee:
________________________________
________________________________
________________________________