UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): June 7, 2017 (June 13, 2017)
Northwest Biotherapeutics, Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
0-35737 (Commission File Number) |
94-3306718 (IRS Employer Identification No.) |
4800 Montgomery Lane, Suite 800
Bethesda, Maryland 20814
(Address of Principal Executive Offices)
(240) 497-9024
(Registrant’s telephone number, including area code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2 below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2 of this chapter).
Emerging Growth Company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement |
As previously reported by Northwest Biotherapeutics, Inc. (the “Company”), the Company and the holders (the “Holders”) of the Company’s 5.00% Convertible Senior Notes due 2017 (the “2017 Notes”) entered into a Note Repurchase Agreement (the “Original Repurchase Agreement”) on March 9, 2017. Thereafter, to allow time for negotiations with unaffiliated institutional investors who were interested in purchasing certain Notes directly from the Holders, the Company and the Holders entered into a Forbearance Agreement (the “Forbearance Agreement”). On June 2, 2017, to allow time for completion and closing of the unaffiliated institutional investors’ purchase of the Notes, the Company and the Holders entered into a second forbearance agreement (the “Second Forbearance Agreement”), under which the Holders agreed to extend the date for payment of the forbearance fees due under the Forbearance Agreement from May 26, 2017 to June 12, 2017.
The investors’ purchase of such Notes was completed within the period permitted under the Second Forbearance Agreement, and the Company paid the applicable forbearance fee within the permitted period.
On June 7, 2017, the Company executed a second supplemental indenture (the “Second Indenture Supplement”) to the Indenture in order to conform the Indenture to the terms of the Second Forbearance Agreement.
Accordingly, pursuant to the Second Indenture Supplement, a default or breach of the terms of the first or second Forbearance Agreement, or an amendment to the Repurchase Agreement executed May 31, 2017 or the Original Repurchase Agreement is also a default under the Indenture. As was originally the case under the Indenture after certain notice procedures, if such a default occurs and is continuing, the principal of all the Notes and accrued and unpaid interest will become automatically due and payable. A copy of the Second Supplemental Indenture is attached hereto as Exhibit 10.1 and is incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. | Description |
| 10.1 | Second Supplemental Indenture, dated June 7, 2017, between Northwest Biotherapeutics, Inc. and The Bank of New York Mellon, as trustee |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NORTHWEST BIOTHERAPEUTICS, INC. | |||
| Date: June 13, 2017 | By: | /s/ Linda Powers | |
| Name: | Linda Powers | ||
| Title: | Chief Executive Officer and Chairman | ||
EXHIBIT INDEX
| Exhibit No. | Description |
| 10.1 | Second Supplemental Indenture, dated June 7, 2017, between Northwest Biotherapeutics, Inc. and The Bank of New York Mellon, as trustee |
Exhibit 10.1
EXECUTION VERSION
NORTHWEST BIOTHERAPEUTICS, INC.
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated and effective as of June 7, 2017, between Northwest Biotherapeutics, Inc. (the “Company”) and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”). Capitalized terms used herein and not otherwise defined have the meaning ascribed to such terms in the Indenture (as defined below).
RECITALS
A. On August 19, 2014, the Company and the Trustee executed an indenture (the “Original Indenture”) pursuant to which the Company initially issued $17,500,000 aggregate principal amount of its 5.00% Convertible Senior Notes due 2017 (the “Notes”), of which $5,500,000 aggregate principal amount remain outstanding as of the date hereof.
B. On March 17, 2017, the Company and the Trustee entered into a First Supplemental Indenture (the “First Supplemental Indenture”, together with the Second Supplemental Indenture and as amended and supplemented from time to time, the “Indenture”).
C. Whitebox Relative Value Partners, LP, Whitebox Credit Arbitrage Partners, LP, Whitebox GT Fund, LP, Whitebox Multi-Strategy Partners, LP and Pandora Select Partners LP (collectively, the “Holders”) beneficially owned all of the outstanding Notes since March 9, 2017 and continue to beneficially own all of the outstanding Notes.
D. On March 9, 2017, the Company and the Holders entered into a Repurchase Agreement, dated as of March 9, 2017, among the Company and each of the Holders (the “Repurchase Agreement”) and, on May 31, 2017, the Company and the Holders entered into the Amendment Agreement (as defined below) pursuant to which, among other things, the Company agreed to supplement the Indenture as set forth herein.
E. On May 22, 2017, the Company and the Holders entered into a Forbearance Agreement (as defined below) and, on June 2, 2017, the Company and the Holders entered into a Second Forbearance Agreement (as defined below).
F. Section 11.01(e) of the Indenture provides for the execution of indentures supplemental to the Indenture, without the consent of the Holders, to, among other things, add to the covenants or Events of Default of the Company for the benefit of the Holders.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE I
Section 1.1 Additional Definitions
Section 1.01 (Definitions) of the Original Indenture is supplemented to add the following:
“Amendment Agreement” means the Amendment to Repurchase Agreement, dated as of May 31, 2017, among the Company and the Holders.
“Forbearance Agreement” means the Forbearance Agreement, dated as of May 22, 2017, among the Company and the Holders.
“Second Forbearance Agreement” means the Second Forbearance Agreement, dated as of June 2, 2017, among the Company and the Holders.
Section 1.1 Additional Event of Default
Section 7.01 of the Original Indenture is supplemented to add the following Event of Default (which shall be an “Event of Default” for all purposes under the Indenture) after Section 7.01(m):
“(n) any default or breach of the terms of the Forbearance Agreement, the Second Forbearance Agreement, the Amendment Agreement or any subsequent amendments, supplements or modifications thereto or to the Original Repurchase Agreement.”
Section 1.2 Automatic Event of Default
Section 7.01 of the Original Indenture is supplemented to add the following in the first paragraph following Section 7.01(n), after the sentence added by Section 1.2 of the First Supplemental Indenture:
“If an Event of Default specified in Section 7.01(n) occurs and is continuing, the principal of all the Notes and accrued and unpaid interest shall automatically be immediately due and payable.”
ARTICLE II
MISCELLANEOUS
Section 2.1 Confirmation of Indenture
The Indenture, as supplemented and amended by the First Supplemental Indenture and this Second Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture, the First Supplemental Indenture, this Second Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
| 2 |
Section 2.2 Concerning the Trustee
In carrying out the Trustee's responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture. The Trustee assumes no responsibility for the correctness of the recitals contained herein. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.
Section 2.3 NEW YORK LAW TO GOVERN
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
Section 2.4 Counterparts
This Second Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to the Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of the Indenture.
| 3 |
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the time, day and year first written above.
| NORTHWEST BIOTHERAPEUTICS, INC. | |||
| By: | /s/ Linda F. Powers | ||
| Name: | Linda F. Powers | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Second Supplemental Indenture]
| THE BANK OF NEW YORK MELLON, Trustee | |||
| By: | /s/ Laurence J. O’Brien | ||
| Name: | Laurence J. O’Brien | ||
| Title: | Vice President | ||
[Signature Page to Second Supplemental Indenture]