Pursuant to this prospectus
supplement and the accompanying prospectus, Northwest Biotherapeutics, Inc. (the “Company,” “we” or “us”)
is offering for sale, directly to selected investors, 12,475,253 shares of our common stock par value $0.001 (the “Common
Stock”), at a weighted average price of $0.2021 per share. We will receive gross proceeds of approximately $2,518,600
from this offering.
Our Common Stock is
traded on the OTCQB tier of the OTC Markets under the symbol “NWBO”. On December 31, 2019, the closing sale price of
our Common Stock was $0.21 per share.
Cautionary
Statement Regarding Forward-Looking Statements
The SEC encourages
companies to disclose forward-looking information so that investors can better understand a company’s future prospects and
make informed investment decisions. This prospectus supplement, the accompanying prospectus and the documents we have filed with
the SEC that are incorporated herein and therein by reference contain such forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”). All statements, other than statements of historical facts, included or incorporated
in this prospectus regarding our strategy, future operations, financial position, future revenues, projected costs, prospects,
plans and objectives of management are forward-looking statements.
The words “anticipates,”
“believes,” “estimates,” “expects,” “intends,” “may,” “plans,”
“projects,” “will,” “would,” “continue” and similar expressions are intended to
identify forward-looking statements, although not all forward-looking statements contain these identifying words. You should read
statements that contain these words carefully because they discuss future expectations and plans, which contain projections of
future results of operations or financial condition or state other forward-looking information. We cannot guarantee that we actually
will achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance
on our forward-looking statements. There are a number of important factors that could cause our actual results to differ materially
from those indicated by these forward-looking statements. These important factors include the factors that we identify in the documents
we incorporate by reference in this prospectus supplement and the prospectus, as well as other information we include or incorporate
by reference in this prospectus supplement and the prospectus. Many factors could affect our actual results, including those factors
described under “Risk Factors” in our Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, each of which are on file with the SEC and are incorporated by reference herein.
You should read these factors and other cautionary statements made in this prospectus supplement and the accompanying prospectus
and the documents incorporated herein by reference. We do not assume any obligation to update any forward-looking statements made
by us. Numerous factors could cause our actual results to differ materially from those described in forward-looking statements,
including, among other things:
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risks related to our abilities to carry out intended manufacturing expansions, validation and scale-up;
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risks related to our ability to raise additional capital;
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risks related to the progress, timing and results of clinical trials and research and development efforts involving our product candidates;
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risks related to patient follow-up, data collection and validation, and data analysis in connection with clinical trials;
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uncertainties as to whether interim and/or final data from clinical trials will be comparable to prior or other data, or will become better or worse as the data matures further;
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uncertainties about statistical analyses of the data from clinical trials, and acceptable statistical methods and approaches;
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uncertainties about the clinical trials process;
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risks related to our ability to enroll patients in clinical trials and complete the trials on a timely basis;
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uncertainties about the timely performance of third parties;
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risks related to whether our products will demonstrate safety and efficacy;
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risks related to our commercialization efforts and commercial opportunity for our DCVax product;
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risks related to the submission of applications for and receipt of regulatory clearances and approvals;
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risks related to our plans to conduct future clinical trials or research and development efforts;
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risks and uncertainties related to our ability to carry out Specials cases (in the U.K.), Right to Try and/or compassionate use cases (in the U.S.) and/or other early or conditional or limited approvals;
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risks related to our dependence upon key personnel;
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risks related to our reliance on third-party manufacturers;
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risks related to our commercialization efforts and commercial opportunity for our DCVax product;
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risks related to our ability to remediate the material weaknesses in our internal control over financial reporting;
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risks related to our need for additional financing;
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risks related to possible reimbursement and pricing;
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uncertainties about estimates of the potential market opportunity for our product candidates;
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uncertainties about our estimated expenditures and projected cash needs;
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uncertainties about our expectations about partnering, licensing and marketing; and
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our broad discretion over the use of proceeds from any offering.
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Please also see the
discussion of risks and uncertainties under “Risk Factors” beginning on page 2 of the accompanying prospectus, in our
most recent Annual Report on Form 10-K, and in our other reports filed with the SEC, incorporated herein by reference.
You should not place
undue reliance on any forward-looking statements, which are based on current expectations. Furthermore, forward-looking statements
speak only as of the date they are made. If any of these risks or uncertainties materialize, or if any of our underlying assumptions
are incorrect, our actual results may differ significantly from the results that we express in or imply by any of our forward-looking
statements. These and other risks are detailed in this prospectus supplement, in the accompanying prospectus, in the documents
that we incorporate by reference into this prospectus supplement and the accompanying prospectus and in other documents that we
file with the SEC. We do not undertake any obligation to publicly update or revise these forward-looking statements after the date
of this prospectus supplement to reflect future events or circumstances. We qualify any and all of our forward-looking statements
by these cautionary factors.
In light of these assumptions,
risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus supplement
or the accompanying prospectus or in any document incorporated herein or therein by reference might not occur. Investors are cautioned
not to place undue reliance on the forward-looking statements, which speak only as of the date of this prospectus supplement or
the accompanying prospectus or the date of the document incorporated by reference herein or therein. We are not under any obligation,
and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law. All subsequent forward-looking statements attributable to us or to any person
acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
Prospectus
Supplement Summary
This summary highlights
certain information about this offering and selected information contained elsewhere in or incorporated by reference into this
prospectus supplement and the accompanying prospectus. This summary is not complete and does not contain all of the information
that you should consider before deciding whether to invest in shares of our Common Stock. For a more complete understanding of
our Company and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus
supplement and the accompanying prospectus, including the information incorporated by reference into this prospectus supplement
and the accompanying prospectus, and the information referred to under the heading “RISK FACTORS” in this prospectus
supplement on page S-2 and on page 2 of the accompanying prospectus, and in the documents incorporated by reference into this prospectus
supplement and the accompanying prospectus.
Securities Offered:
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An aggregate of 12,475,253 shares of Common Stock is being offered.
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See “DESCRIPTION OF SECURITIES” on page S-3 for a complete description of the factors you should consider carefully before deciding to invest in our securities.
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Shares of Common Stock
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Outstanding After Offering:
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618,455,638 shares of Common Stock.(1)
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Risk Factors:
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Investing in our Common Stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “RISK FACTORS” on page S-2 of this prospectus supplement and page 2 of the accompanying prospectus, and under similar headings in the other documents, including our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q, that are incorporated by reference into this prospectus supplement and the accompanying prospectus.
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Use of Proceeds:
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We estimate that our net proceeds from the offering will be approximately $2,404,600, after deducting estimated expenses payable by us in connection with such closing.
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We intend to use the net proceeds from this offering for general corporate purposes, which may include working capital, capital expenditures, research and development expenditures, regulatory affairs expenditures, clinical trial expenditures, and acquisitions of new technologies and investments. See “USE OF PROCEEDS” on page S-2 of this prospectus supplement.
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Market for the
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Common Stock:
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Our Common Stock is listed on the OTCQB tier of the OTC Markets under the symbol “NWBO”.
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(1)
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The number of shares of
our Common Stock to be outstanding after this offering is based on approximately 605,980,385 shares outstanding as of December
31, 2019.
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Risk
Factors
Investing in our
securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the
risk factors in the accompanying prospectus and the risks and uncertainties and assumptions discussed under the heading “Risk
Factors” included in our most recent annual report on Form 10-K and our quarterly reports on Form 10-Q, which are on file
with the SEC and are incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by
other reports we file with the SEC in the future. There may be other unknown or unpredictable economic, business, competitive,
regulatory or other factors that could have material adverse effects on our future results. If any of these risks actually occurs,
our business, business prospects, financial condition or results of operations could be seriously harmed. This could cause the
trading price of our Common Stock to decline, resulting in a loss of all or part of your investment. Please also read carefully
the section above entitled “Cautionary Statement Regarding Forward-Looking Statements.”
For more information
about our SEC filings, please see “Where You Can Find More Information” and “Incorporation of Certain Information
by Reference.”
Use
of Proceeds
We estimate that the
net proceeds from this offering will be approximately $2,404,600, after deducting estimated offering expenses payable by us.
We intend to use the
net proceeds from this offering for general corporate purposes, which may include working capital, capital expenditures, research
and development expenditures, regulatory affairs expenditures, clinical trial expenditures, and acquisitions of new technologies
and investments.
We have not yet determined
the amount of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant
discretion and flexibility in applying the net proceeds from this offering. Pending any use, as described above, we intend to invest
the net proceeds in high-quality, short-term, interest-bearing securities.
Dividend
Policy
We have never declared
or paid cash dividends on our capital stock. We currently intend to retain our future earnings, if any, for use in our business
and therefore do not anticipate paying cash dividends in the foreseeable future. Payment of future dividends, if any, will be at
the discretion of our board of directors after taking into account various factors, including our financial condition, operating
results, current and anticipated cash needs and plans for expansion.
Dilution
In purchasing shares
in this offering, the buyer’s interest will be diluted to the extent of the difference between the offering price per share
and the net tangible book value per share of our Common Stock after this offering. Our net tangible book value as of September
30, 2019 was $(54.5) million, or $(0.09) per share of Common Stock. “Net tangible book value” is total assets minus
the sum of liabilities and intangible assets. “Net tangible book value per share” is net tangible book value divided
by the total number of shares of Common Stock outstanding.
After giving effect
to the sale by us of 12,475,253 shares of our Common Stock in this offering at the weighted average offering price of $0.202 per
share, and after deducting estimated offering expenses payable by us, our net tangible book value as of September 30, 2019 would
have been approximately $(52.1) million, or $(0.09) per share of Common Stock. This amount represents no increase in net tangible
book value per share to existing stockholders and an immediate dilution of $0.292 per share to purchasers in this offering.
The following table
illustrates the dilution:
Offering price per share
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$
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0.202
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Net tangible book value per share as of September 30, 2019
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$
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(0.09
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Increase in net tangible book value per share after this offering
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$
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0.00
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Pro forma net tangible book value per share after this offering
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$
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(0.09)
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Dilution per share to the investor in this offering
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$
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0.292
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The above table is
based on 582,788,242 shares outstanding, including redeemable shares, as of September 30, 2019 and excludes, as of that date:
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101,658,932 shares of our Common Stock subject to outstanding options having a weighted average exercise price of $0.24 per share; and
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352,507,563 shares of our Common Stock that have been reserved for issuance upon exercise of outstanding warrants at a weighted average exercise price of $0.28 per share.
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To the extent that
any outstanding options or warrants are exercised, or we otherwise issue additional shares of Common Stock in the future, at a
price less than the public offering price, there will be further dilution to the investor.
Description
of Securities
In this offering, we
are offering 12,475,253 shares of our Common Stock. In connection with new investment by investors, we are modifying the terms
of certain existing warrants already held by those investors, with the extent of such modifications negotiated in accordance with
the extent of new investment by each such investor. In order to implement these modifications, concurrent with the closing of the
new share purchases in this offering, we have exchanged previously issued warrants for an equivalent number of warrants with an
expiration date that is 12 to 18 months after the expiration date of the warrants for which they were exchanged. In some cases,
the weighted average exercise price of warrants was reduced by an amount ranging from 2 to 8 cents as well.
Common Stock
The following is a
description of the material terms and provisions of our Common Stock. It may not contain all the information that is important
to you. You can access complete information by referring to our Certificate of Incorporation and our Bylaws, copies of which are
filed as exhibits to the registration statement of which this prospectus forms a part.
General
Under our Certificate
of Incorporation, we have authority to issue 1,200,000,000 shares of Common Stock, par value $0.001 per share, and 100,000,000
shares of preferred stock, par value $0.001 per share. As of December 31, 2019, there were 605,980,385 shares of Common Stock issued
and outstanding and no shares of preferred stock outstanding. All shares of Common Stock will, when issued pursuant to this prospectus,
be duly authorized, fully paid and nonassessable.
Dividends
Subject to the prior
rights of any series of preferred stock which may from time to time be outstanding, the holders of our Common Stock are entitled
to receive such dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
In the event we are liquidated, dissolved or our affairs are wound up, after we pay or make adequate provision for all of our known
debts and liabilities, each holder of Common Stock will receive distributions pro rata out of assets that we can legally use to
pay distributions, subject to any rights that are granted to the holders of any class or series of preferred stock. As of the date
of this prospectus, we have not declared or paid any cash dividends on our shares of Common Stock.
Voting Rights
Holders of Common Stock
are entitled to one vote per share and do not have cumulative voting rights. An election of directors by our stockholders is determined
by a plurality of the votes cast by the stockholders entitled to vote on the election.
Other Rights
Subject to the preferential
rights of any other class or series of stock, all shares of Common Stock have equal dividend, distribution, liquidation and other
rights, and have no preference, appraisal or exchange rights. Furthermore, holders of Common Stock have no conversion, sinking
fund or redemption rights, or preemptive rights to subscribe for any of our securities.
Transfer Agent
The transfer agent
and registrar for our Common Stock is Computershare Trust Company, N.A. Its address is P.O. Box 30170, College Station, Texas 77842
and its phone number is (866) 282-9695.
Listing
Our Common Stock is
traded on the OTCQB tier of the OTC Markets under the symbol “NWBO”.
Plan
of Distribution
Pursuant to a placement
agent agreement, dated December 28, 2019, we have engaged Wynston Hill Capital, LLC as a placement agent (the “Placement
Agent”) for a portion of this offering comprising approximately half of the offering. Upon the closing of the portion of
this offering for which the Placement Agent is responsible (the “Placement Agent Shares”), we will pay to the Placement
Agent (i) a cash fee equal to eight percent of the cash proceeds to us from the sale of the Placement Agent Shares and (ii) warrants
(the “Placement Agent Warrant”) exercisable for a number of shares of our Common Stock equal to four percent of the
number of Placement Agent Shares. The Placement Agent Warrant will have an exercise price of 100% of the per share price paid by
the investors for the Placement Agent Shares and will terminate on the two-year anniversary of the effective date of the offering.
We have agreed to indemnify
the Placement Agent against certain liabilities, including liabilities under the Securities Act and liabilities
arising from breaches and representations and warranties contained in the placement agent agreement. We have also agreed to contribute
to payments the Placement Agent may be required to make in respect of such liabilities.
Experts
The audited financial
statements incorporated by reference in this prospectus have been so incorporated by reference in reliance upon the report of Marcum
LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing in giving
said report.
Where
You Can Find More Information
We are subject to the
reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy
statements and other information with the SEC. SEC filings are available at the SEC’s website at http://www.sec.gov. Information
about us, including a link to our SEC filings, is also available on our website at http://nwbio.com. However, the information on
our website is not a part of this prospectus supplement or the accompanying prospectus.
This prospectus supplement
and the accompanying prospectus are only part of a registration statement on Form S-3 that we filed with the SEC under the Securities
Act and therefore omit certain information contained in the registration statement. We have also filed exhibits
and schedules with the registration statement that are excluded from this prospectus supplement and the accompanying prospectus,
and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract
or other document.
Incorporation
of Certain Information By Reference
The SEC allows us to
“incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose important
information to you by referring you to those other documents. The information incorporated by reference is an important part of
this prospectus supplement and the accompanying prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the securities being offered pursuant to this prospectus supplement and the accompanying prospectus.
This prospectus supplement and the accompanying prospectus omit certain information contained in the registration statement, as
permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us
and the securities being offered pursuant to this prospectus supplement and the accompanying prospectus. Statements in this prospectus
supplement and the accompanying prospectus regarding the provisions of certain documents filed with, or incorporated by reference
in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, are
available at the SEC’s website at http://www.sec.gov as described in “Where You Can Find More Information.” The
documents we are incorporating by reference are:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed on April 2, 2019;
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Our Quarterly Report on Form 10-Q for the fiscal quarters ended March 31, 2019, filed on May 10, 2019, June 30, 2019, filed on August 9, 2019 and September 30, 2019, filed on November 12, 2019;
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All of our filings pursuant to the Exchange Act after the date of filing this prospectus supplement and prior to completion of the offering of securities being made hereby; and
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The description of our Common Stock contained in our Registration Statement on Form 8-A filed on November 14, 2012, including any amendments or reports filed for the purpose of updating that description.
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In addition, all documents
(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed in such forms that are related
to such items unless such Form 8-K expressly provides to the contrary) subsequently filed by us pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act before the date our offering is terminated or completed are deemed
to be incorporated by reference into, and to be a part of, this prospectus supplement and the accompanying prospectus.
Any statement contained
in this prospectus supplement or the accompanying prospectus or in a document incorporated or deemed to be incorporated by reference
into this prospectus supplement or the accompanying prospectus will be deemed to be modified or superseded for purposes of this
prospectus supplement and the accompanying prospectus to the extent that a statement contained in any subsequently filed document
that is deemed to be incorporated by reference into this prospectus supplement and the accompanying prospectus modifies or supersedes
the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a
part of this prospectus supplement and the accompanying prospectus.
We will furnish without
charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits
to these documents. You should direct any requests for documents to Northwest Biotherapeutics, Inc., 4800 Montgomery Lane, Suite
800, Bethesda, MD 20814, (240) 497-9024.
You should rely only
on information contained in, or incorporated by reference into, this prospectus supplement and the accompanying prospectus and
any other prospectus supplement. We have not authorized anyone to provide you with information different from that contained in
this prospectus supplement and the accompanying prospectus or incorporated by reference in this prospectus supplement and the accompanying
prospectus. We are not making offers to sell the securities offered hereby in any jurisdiction in which such an offer or solicitation
is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make such offer or solicitation.
PROSPECTUS
Northwest Biotherapeutics, Inc.
$150,000,000
of
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Share Purchase Contracts
Share Purchase Units
Units
This prospectus relates to common stock,
preferred stock, depositary shares, warrants, debt securities, share purchase contracts, share purchase units, and units comprised
of the foregoing that we may sell from time to time in one or more offerings up to a total dollar amount of $150,000,000 on terms
to be determined at the time of sale. We also may offer any of the foregoing securities upon (i) conversion of debt securities
or preferred stock, (ii) exercise of warrants or (iii) settlement of share purchase contracts. We will provide specific terms
of these securities in supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully
before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement
for those securities.
Our common stock is traded on the OTCQB
tier of the OTC Markets under the symbol “NWBO.” On October 17, 2019, the last reported sale price of our common stock
was $0.23. We recommend that you obtain current market quotations for our common stock prior to making an investment decision.
These securities may be sold directly by
us, through dealers or agents designated from time to time, to or through underwriters or through a combination of these methods.
See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution for any particular offering
of these securities in any applicable prospectus supplement. If any agents, underwriters or dealers are involved in the sale of
any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements
with them in a prospectus supplement. The net proceeds we expect to receive from any such sale will also be included in a prospectus
supplement.
As of October
17, 2019, the aggregate market value of our outstanding common stock held by non-affiliates, or the public float, was $127,293,234,
which was calculated based on 584,430,368 shares of outstanding common stock and 553,448,845 shares of outstanding common stock
held by non-affiliates, and on a price per share of $0.23, the closing price of our common stock on October 17, 2019.
Investing in our securities involves
a high degree of risk. See “Risk Factors” beginning on page 3.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
This prospectus may not be used to consummate
sales of securities unless it is accompanied by a prospectus supplement.
The date of this prospectus is , 2019
TABLE OF CONTENTS
Important Notice about the Information
Presented in this Prospectus
You should rely only on the information
contained or incorporated by reference in this prospectus or any applicable prospectus supplement. We have not authorized any other
person to provide you with different information. If anyone provides you with different or inconsistent information, you should
not rely on it. For further information, see the section of this prospectus entitled “Where You Can Find More Information.”
We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information
appearing in this prospectus or any applicable prospectus supplement is accurate as of any date other than the date on the front
cover of this prospectus or the applicable prospectus supplement, or that the information contained in any document incorporated
by reference is accurate as of any date other than the date of the document incorporated by reference, regardless of the time of
delivery of this prospectus or any prospectus supplement or any sale of a security. Our business, financial condition, results
of operations and prospects may have changed since such dates. Neither this prospectus nor any accompanying supplement shall constitute
an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (the “SEC”), using a “shelf” registration
process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one
or more offerings up to a total dollar amount of $150,000,000. This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about
the securities being offered and the terms of that offering. The prospectus supplement may also add to, update or change information
contained in this prospectus.
As permitted by the rules and regulations
of the SEC, the registration statement, of which this prospectus forms a part, includes additional information not contained in
this prospectus. You may read the registration statement and other reports we file with the SEC on the SEC’s website’,
as further described below under the heading “Where You Can Find More Information.”
Unless otherwise expressly provided or the
context otherwise requires, the terms “Northwest Biotherapeutics,” “the Company,” “our company,”
“we,” “us,” “our” and similar names refer collectively to Northwest Biotherapeutics, Inc. and
its subsidiaries.
There must be a current state blue sky
registration or exemption from such registration for you to purchase or sell these securities.
Each state has its own securities laws,
often called “blue sky” laws, which (i) limit sales of securities to a state’s residents unless the securities
are registered in that state or qualify for an exemption from registration, and (ii) govern the reporting requirements for broker-dealers
doing business directly or indirectly in the state. Before a security is sold in a state, there must be a registration in place
to cover the transaction, or the transaction must be exempt from registration. The applicable broker of such transaction must also
be registered in that state.
We cannot guarantee that we will be able
to effect any required blue sky registrations or qualifications. You will have the ability to purchase these securities only if
such securities have been qualified for sale under the laws of the state where the offer and sale is to occur, or if they fall
within an exemption from registration. We will not knowingly sell any securities to purchasers in jurisdictions in which such sales
are not registered or otherwise qualified for issuance or exempt from registration. As a result, there may be significant state
blue sky law restrictions on the ability of investors to sell, and on purchasers to buy, our securities.
ABOUT NORTHWEST
BIOTHERAPEUTICS, INC.
We are a biotechnology company focused on
developing personalized immune therapies for cancer. We have developed a platform technology, DCVax®, which uses activated
dendritic cells to mobilize a patient’s own immune system to attack their cancer.
Our lead product, DCVax®-L, is designed
to treat solid tumor cancers in which the tumor can be surgically removed. This product is in an ongoing 331-patient Phase III
trial for newly diagnosed Glioblastome multiforme (GBM). On May 29, 2018, interim blinded data from the Phase III trial, which
were collected in 2017 were published in a peer reviewed scientific journal. On November 17, 2018, updated interim blinded data
from the Phase III trial were presented at the Society for Neuro-Oncology annual meeting. As the Company noted in its announcement
of the publication and in subsequent reports, the data could get either better or worse as it continues to mature. The Company
has been consulting with its Scientific Advisory Board, the Steering Committee of the trial and other independent experts about
the ongoing handling of the trial.
As previously reported, the Company is now
moving forward with the several stages of work that are needed to reach completion of this trial. These include finalizing the
Statistical Analysis Plan, conducting the final data collection, data validation and data lock, and then unblinding and analyzing
the data. Each of these stages are multi-month processes, involving teams of outside experts as well as Company personnel. This
work also involves substantial pioneering, without a well-established pathway or roadmap since very few personalized cell therapies
have reached late stage development. Accordingly, the Company’s projections, estimates and expectations are subject to material
changes as the work proceeds.
Our second product, DCVax®-Direct, is
designed to treat inoperable solid tumors. A 40-patient Phase I trial has been completed, and included treatment of a diverse range
of cancers. The Company is working on preparations for Phase II trials of DCVax-Direct.
Corporate Information
We were formed in 1996 and incorporated
in Delaware in July 1998. Our principal executive offices are located in Bethesda, Maryland, and our telephone number is (240)
497-9024. Our website address is www.nwbio.com. The information on our website is not part of this prospectus. We have included
our website address as a factual reference and do not intend it to be an active link to our website.
RISK FACTORS
Investing in our securities involves significant
risks. Please see the risk factors under the heading “Risk Factors” in our most recent Annual Report on Form 10-K,
as revised or supplemented by our Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, each of which are on file with
the SEC and are incorporated by reference in this prospectus. Before making an investment decision, you should carefully consider
these risks as well as other information we include or incorporate by reference in this prospectus and any prospectus supplement.
The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also affect our business operations, results of operation, financial
condition or prospects.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
The SEC encourages companies to disclose
forward-looking information so that investors can better understand a company’s future prospects and make informed investment
decisions. This prospectus includes and incorporates forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). All statements, other than statements of historical facts, included or incorporated in this prospectus
regarding our strategy, future operations, financial position, future revenues, projected costs, prospects, plans and objectives
of management are forward-looking statements.
The words “anticipates,” “believes,”
“estimates,” “expects,” “intends,” “may,” “plans,” “projects,”
“will,” “would,” “continue” and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain these identifying words. You should read statements that contain
these words carefully because they discuss future expectations and plans, which contain projections of future results of operations
or financial condition or state other forward-looking information. We cannot guarantee that we actually will achieve the plans,
intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking
statements. There are a number of important factors that could cause our actual results to differ materially from those indicated
by these forward-looking statements. These important factors include the factors that we identify in the documents we incorporate
by reference in this prospectus, as well as other information we include or incorporate by reference in this prospectus and any
prospectus supplement. Many factors could affect our actual results, including those factors described under “Risk Factors”
in our Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, each of which are on file with the SEC and are incorporated by reference in this prospectus. You should read these factors
and other cautionary statements made in this prospectus and any accompanying prospectus supplement, and in the documents we incorporate
by reference as being applicable to all related forward-looking statements wherever they appear in the prospectus and any accompanying
prospectus supplement, and in the documents incorporated by reference. We do not assume any obligation to update any forward-looking
statements made by us.
Numerous factors could cause our actual
results to differ materially from those described in forward-looking statements, including, among other things:
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risks related to our abilities to carry out intended manufacturing expansions, validation and scale-up;
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risks related to our ability to raise additional capital;
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risks related to the progress, timing and results of clinical trials and research and development efforts involving our product
candidates;
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risks related to patient follow-up, data collection and validation, and data analysis in connection with clinical trials;
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uncertainties as to whether interim and/or final data from clinical trials will be comparable to prior or other data, or will
become better or worse as the data matures further;
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uncertainties about statistical analyses of the data from clinical trials, and acceptable statistical methods and approaches;
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uncertainties about the clinical trials process;
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risks related to our ability to enroll patients in clinical trials and complete the trials on a timely basis;
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uncertainties about the timely performance of third parties;
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risks related to whether our products will demonstrate safety and efficacy;
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risks related to our commercialization efforts and commercial opportunity for our DCVax product;
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risks related to the submission of applications for and receipt of regulatory clearances and approvals;
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risks related to our plans to conduct future clinical trials or research and development efforts;
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risks and uncertainties related to our ability to carry out Specials cases (in the U.K.), Right to Try and/or compassionate
use cases (in the U.S.) and/or other early or conditional or limited approvals;
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risks related to our dependence upon key personnel;
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risks related to our reliance on third-party manufacturers;
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risks related to our commercialization efforts and commercial opportunity for our DCVax product;
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risks related to our ability to remediate the material weaknesses in our internal control over financial reporting;
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risks related to our need for additional financing
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risks related to possible reimbursement and pricing;
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uncertainties about estimates of the potential market opportunity for our product candidates;
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uncertainties about our estimated expenditures and projected cash needs;
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uncertainties about our expectations about partnering, licensing and marketing; and
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our broad discretion over the use of proceeds from any offering.
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You should not place undue reliance on any
forward-looking statements, which are based on current expectations. Furthermore, forward-looking statements speak only as of the
date they are made. If any of these risks or uncertainties materialize, or if any of our underlying assumptions are incorrect,
our actual results may differ significantly from the results that we express in or imply by any of our forward-looking statements.
These and other risks are detailed in this prospectus, in any accompanying prospectus supplement, in the documents that we incorporate
by reference into this prospectus and any accompanying prospectus supplement and in other documents that we file with the SEC.
We do not undertake any obligation to publicly update or revise these forward-looking statements after the date of this prospectus
to reflect future events or circumstances. We qualify any and all of our forward-looking statements by these cautionary factors.
In light of these assumptions, risks and
uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus or any accompanying
prospectus or in any document incorporated herein or therein by reference might not occur. Investors are cautioned not to place
undue reliance on the forward-looking statements, which speak only as of the date of this prospectus or any accompanying prospectus
or the date of any document incorporated by reference herein or therein. We are not under any obligation, and we expressly disclaim
any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise,
except as required by law. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are
expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
Use Of Proceeds
Unless otherwise provided in the applicable
prospectus supplement, we intend to use the net proceeds from the sale of these securities for general corporate purposes, which
may include working capital, capital expenditures, research and development expenditures, regulatory affairs expenditures, clinical
trial expenditures, and acquisitions of new technologies and investments. We have not yet determined the amount of net proceeds
to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility
in applying the net proceeds from the sale of these securities. Our plans to use the estimated net proceeds from the sale of these
securities may change, and if they do, we will update this information in a prospectus supplement.
The Securities
We May Offer
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize the material terms and provisions of the various
types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If we so indicate in the applicable prospectus supplement,
the terms of the securities may differ from the terms we have summarized below. We will also include in the prospectus supplement
information, where applicable, about material U.S. federal income tax considerations relating to the securities, and the securities
exchange, if any, on which the securities may be listed.
We may sell from time to time, in one or
more offerings:
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warrants to purchase common stock, preferred stock, depositary shares, debt securities and/or units;
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share purchase contracts to purchase common stock, preferred stock, debt securities and/or units;
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share purchase units, each representing one or more share purchase contracts and, as security for the holder’s obligation
to purchase shares under the share purchase contracts any one or more of (1) senior or subordinated debt securities, (2) preferred
shares or (3) debtor equity obligations of third parties, including U.S. Treasury securities; or
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units comprised of common stock, preferred stock, depositary shares, warrants and/or debt securities in any combination.
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In this prospectus, we refer to the common
stock, preferred stock, depositary shares, debt securities, warrants, stock purchase contracts, stock purchase units, and units
collectively as “securities.” The total dollar amount of all securities that we may issue pursuant to this prospectus
will not exceed $150,000,000.
Description
Of Common Stock
The following is a description of the material
terms and provisions of our common stock. It may not contain all the information that is important to you. You can access complete
information by referring to our Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and
our Bylaws, as amended (the “Bylaws”), copies of which are filed as exhibits to the registration statement of which
this prospectus forms a part or incorporated by reference to our other filings with the Commission.
General
Under our Certificate of Incorporation,
we have authority to issue 1,200,000,000 shares of common stock, par value $0.001 per share, and 100,000,000 shares of preferred
stock, par value $0.001 per share. As of October 17, 2019, there were 584,430,368 shares
of common stock issued and outstanding and no shares of preferred stock outstanding. All shares of common stock will, when issued
pursuant to this prospectus, be duly authorized, fully paid and nonassessable.
Dividends
Subject to the prior rights of any series
of preferred stock which may from time to time be outstanding, the holders of our common stock are entitled to receive such dividends,
if any, as may be declared from time to time by our board of directors out of legally available funds. In the event we are liquidated,
dissolved or our affairs are wound up, after we pay or make adequate provision for all of our known debts and liabilities, each
holder of common stock will receive distributions pro rata out of assets that we can legally use to pay distributions, subject
to any rights that are granted to the holders of any class or series of preferred stock. As of the date of this prospectus, we
have not declared or paid any cash dividends on our shares of common stock.
Voting Rights
Holders of common stock are entitled to
one vote per share and do not have cumulative voting rights. An election of directors by our stockholders is determined by a plurality
of the votes cast by the stockholders entitled to vote on the election.
Other Rights
Subject to the preferential rights of any
other class or series of stock, all shares of common stock have equal dividend, distribution, liquidation and other rights, and
have no preference, appraisal or exchange rights. Furthermore, holders of common stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any of our securities.
Transfer Agent
The transfer agent and registrar for our
common stock is Computershare Trust Company, N.A. Its address is P.O. Box 30170, College Station, Texas 77842 and its phone number
is (866) 282-9695.
Listing
Our common stock is traded on the OTCQB
tier of the OTC Markets under the symbol “NWBO.”
Description
Of Preferred Stock
Our Certificate of Incorporation authorizes
us to issue up to 100,000,000 shares of preferred stock, of which no shares are outstanding.
General
Our board of directors may, without stockholder
approval, issue up to 100,000,000 shares of preferred stock in one or more series and, subject to the Delaware General Corporation
Law (“DGCL”), with respect to each series may:
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fix the designation of such series;
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fix the number of shares to constitute such series;
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fix whether such series is to have voting rights (full, special or limited) or is to be without voting rights;
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fix the terms of any voting rights, including whether or not such series is to be entitled to vote as a separate class either
alone or together with the holders of the common stock or one or more other series of preferred stock;
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fix the preferences and relative, participating, optional, conversion and/or other special rights (if any) of such series and
the qualifications, limitations and/or restrictions (if any) with respect to such series;
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fix the redemption rights and price(s), if any, of such series, and whether or not the shares of such series shall be subject
to operation of retirement or sinking funds to be applied to the or redemption of such shares for retirement and, if such retirement
or sinking funds or funds are to be established, the periodic amount thereof and the terms and provisions relative to the operation
thereof;
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fix the dividend rights and preferences (if any) of such series, including, without limitation, (i) the rates of dividends
payable thereon, (ii) the conditions upon which and the time when such dividends are payable, (iii) whether or not such dividends
shall be cumulative or noncumulative and, if cumulative, the date or dates from which such dividends shall accumulate and (iv)
whether or not the payment of such dividends shall be preferred to the payment of dividends payable on the common stock or any
other series of preferred stock;
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fix the preferences (if any), and the amounts thereof, which the holders of such series shall be entitled to receive upon the
voluntary or involuntary liquidation, dissolution or winding-up of, or upon any distribution of the assets of, the Company;
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fix whether or not the shares of such series, at the option of the Company or the holders thereof or upon the happening of
any specified event, shall be convertible into or exchangeable for (i) shares of common stock, (ii) shares of any other series
of preferred stock or (iii) any other stock or securities of the Company;
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fix, if such series is to be convertible or exchangeable, the price or prices or ratio or ratios or rate or rates at which
such conversion or exchange may be made and the terms and conditions (if any) upon which such price or prices or ratio or ratios
or rate or rates may be adjusted;
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fix such other rights, powers and preferences with respect to such series as may to the board of directors seem advisable;
and
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increase (but not above the total number of authorized shares of the class) or decrease (but not below the total number of
such series then outstanding) the number of shares of any series of preferred stock subsequent to the issuance of shares of such
series.
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DESCRIPTION
OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional
shares of preferred stock, rather than full shares of preferred stock. If we exercise this option, we will issue to the public
receipts for depositary shares, and each of these depositary shares will represent a fraction (to be set forth in the applicable
prospectus supplement) of a share of a particular series of preferred stock. The following summaries of the deposit agreement,
the depositary shares and the depositary receipts are not complete. You should refer to the forms of the deposit agreement and
depositary receipts that will be filed with the SEC in connection with any offering of the specific depositary shares.
The shares of any series of preferred stock
underlying the depositary shares will be deposited under a deposit agreement between us and a bank or trust company selected by
us. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable
fraction of a share of preferred stock underlying that depositary share, to all the rights and preferences of the preferred stock
underlying that depositary share. Those rights may include dividend, voting, redemption and liquidation rights.
The depositary shares will be evidenced
by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing
the fractional shares of preferred stock underlying the depositary shares, in accordance with the terms of the offering. Copies
of the forms of deposit agreement and depositary receipt will be filed as exhibits to current or other reports we file with the
SEC.
Pending the preparation of definitive depositary
receipts, the depositary may, upon our written order, issue temporary depositary receipts substantially identical to the definitive
depositary receipts but not in definitive form. These temporary depositary receipts entitle their holders to all the rights of
definitive depositary receipts that are to be prepared without unreasonable delay. Temporary depositary receipts will then be exchangeable
for definitive depositary receipts at our expense.
Description
Of Warrants
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the
terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series
of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any
warrants offered under that prospectus supplement may differ from the terms described below. If there are differences between that
prospectus supplement and this prospectus, the prospectus supplement will control. Thus, the statements we make in this section
may not apply to a particular series of warrants. Specific warrant agreements will contain additional important terms and provisions
and will be incorporated by reference as an exhibit to the registration statement which includes this prospectus.
General
We may issue warrants for the purchase of
common stock, preferred stock, depositary shares, debt securities and/or units in one or more series, which warrants may take the
form of, or be called, options. We may issue warrants independently or together with common stock, preferred stock, depositary
shares, debt securities and/or units, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants
by warrant certificates that we may issue under a separate agreement. We will describe in the applicable prospectus supplement
the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase common stock, preferred stock or depositary shares, the number of shares of common stock,
preferred stock or depositary shares, as the case may be, purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such exercise;
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the warrant agreement under which the warrants will be issued;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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anti-dilution provisions of the warrants, if any;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable
during that period, the specific date or dates on which the warrants will be exercisable;
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the manner in which the warrant agreement and warrants may be modified;
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the identities of the warrant agent and any calculation or other agent for the warrants;
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federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants;
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any securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants
may be listed; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase common stock, preferred stock or depositary shares, the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any; or
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture.
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Exercise of Warrants
Each warrant will entitle the holder to
purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise
the warrants at any time up to 5:00 p.m. Eastern Time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the
warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and
paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information
that the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and
the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate
for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender
securities as all or part of the exercise price for warrants.
Description
Of Debt Securities
The following is a general description of
the debt securities that we may offer from time to time. The particular terms of the debt securities offered by any prospectus
supplement and the extent, if any, to which the general provisions described below may apply to those securities will be described
in the applicable prospectus supplement. We also may sell hybrid securities that combine certain features of debt securities and
other securities described in this prospectus. As you read this section, please remember that the specific terms of a debt security
as described in the applicable prospectus supplement will supplement and may modify or replace the general terms described in this
section. If there are differences between the applicable prospectus supplement and this prospectus, the applicable prospectus supplement
will control. As a result, the statements we make in this section may not apply to the debt security you purchase.
Except as otherwise defined herein, capitalized
terms used but not defined in this section have the respective meanings set forth in the applicable indenture. As used in this
section, “Northwest Biotherapeutics” refers to Northwest Biotherapeutics, Inc. on an unconsolidated basis and does
not include any of its consolidated subsidiaries.
General
The debt securities that we offer may be
senior debt securities and/or subordinated debt securities and may be secured and/or unsecured. We may issue senior debt securities
under an indenture, which we refer to as the senior indenture, to be entered into between Northwest Biotherapeutics and the trustee
named in the applicable prospectus supplement. We may issue subordinated debt securities under an indenture, which we refer to
as the subordinated indenture, to be entered into between Northwest Biotherapeutics and the trustee named in the applicable prospectus
supplement. We refer to the senior indenture and the subordinated indenture as the indentures, and to each of the trustees under
the indentures as a trustee. In addition, the indentures may be supplemented or amended as necessary to set forth the terms of
any debt securities issued under the indentures. You should read the indentures, including any amendments or supplements, carefully
to fully understand the terms of the debt securities. Forms of such potential indentures have been filed as exhibits to the registration
statement of which this prospectus is a part. Such indentures are subject to, and are governed by the Trust Indenture Act of 1939.
The senior debt securities will be unsubordinated
obligations. They will rank equally with each other and all other unsubordinated debt, unless otherwise indicated in the applicable
prospectus supplement. The subordinated debt securities will be subordinated in right of payment to the prior payment in full of
our senior debt, unless otherwise indicated in the applicable prospectus supplement. See “Subordination of Subordinated Debt
Securities.” The subordinated debt securities will rank equally with each other, unless otherwise indicated in the applicable
prospectus supplement. We will indicate in each applicable prospectus supplement relating to subordinated debt securities, as of
the most recent practicable date, the aggregate amount of our outstanding debt that would rank senior to the subordinated debt
securities.
The indentures do not limit the amount of
debt securities that can be issued thereunder and provide that debt securities of any series may be issued thereunder up to the
aggregate principal amount that we may authorize from time to time. Unless otherwise provided in the prospectus supplement, the
indentures do not limit the amount of other indebtedness or securities that we may issue. We may issue debt securities of the same
series at more than one time and, unless prohibited by the terms of the series, we may reopen a series for issuances of additional
debt securities, without the consent of the holders of the outstanding debt securities of that series. All debt securities issued
as a series, including those issued pursuant to any reopening of a series, will vote together as a single class unless otherwise
described in the prospectus supplement for such series.
Reference is made to the prospectus supplement
for the following and/or other possible terms of each series of the debt securities in respect of which this prospectus is being
delivered:
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the title of the debt securities;
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any limit upon the aggregate principal amount of the debt securities of that series that may be authenticated and delivered
under the applicable indenture, except for debt securities authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, other debt securities of that series;
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the date or dates on which the principal and premium, if any, of the debt securities of the series is payable;
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the rate or rates, which may be fixed or variable, at which the debt securities of the series shall bear interest or the manner
of calculation of such rate or rates, if any, including any procedures to vary or reset such rate or rates, and the basis upon
which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
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the date or dates from which such interest shall accrue, the dates on which such interest will be payable or the manner of
determination of such dates, and the record date for the determination of holders to whom interest is payable on any such dates;
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any trustees, authenticating agents or paying agents with respect to such series, if different from those set forth in the
applicable indenture;
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the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension
or deferral;
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the period or periods within which, the price or prices at which and the terms and conditions upon which, debt securities of
the series may be redeemed, in whole or in part, at the option of Northwest Biotherapeutics;
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the obligation, if any, of Northwest Biotherapeutics to redeem, purchase or repay debt securities of the series pursuant to
any sinking fund or analogous provisions, including payments made in cash in anticipation of future sinking fund obligations, or
at the option of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions
upon which, debt securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
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the form of the debt securities of the series including the form of the trustee’s certificate of authentication for such
series;
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if other than denominations of any multiple of $1,000, the denominations in which securities
of the series shall be issuable;
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the currency or currencies in which payment of the principal of, premium, if any, and interest on, debt securities of the series
shall be payable;
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if the principal amount payable at the stated maturity of debt securities of the series will not be determinable as of any
one or more dates prior to such stated maturity, the amount which will be deemed to be such principal amount as of any such date
for any purpose, including the principal amount thereof that will be due and payable upon declaration of the maturity thereof or
upon any maturity other than the stated maturity or that will be deemed to be outstanding as of any such date, or, in any such
case, the manner in which such deemed principal amount is to be determined;
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the terms of any repurchase or remarketing rights;
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if the securities of the series shall be issued in whole or in part in the form of a global security or securities, the type
of global security to be issued; the terms and conditions, if different from those contained in the applicable indenture, upon
which such global security or securities may be exchanged in whole or in part for other individual securities in definitive registered
form; the depositary for such global security or securities; and the form of any legend or legends to be borne by any such global
security or securities in addition to or in lieu of the legends referred to in the indenture;
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whether the debt securities of the series will be convertible into or exchangeable for other debt securities, registered shares
or other securities of any kind of Northwest Biotherapeutics or another obligor, and, if so, the terms and conditions upon which
such debt securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the
method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory,
at the option of the holder or at Northwest Biotherapeutics’ option, the conversion or exchange period, and any other provision
in addition to or in lieu of those described herein;
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any additional restrictive covenants or events of default that will apply to the debt securities of the series, or any changes
to the restrictive covenants set forth in the applicable indenture that will apply to the debt securities of the series, which
may consist of establishing different terms or provisions from those set forth in the applicable indenture or eliminating any such
restrictive covenant or event of default with respect to the debt securities of the series;
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any provisions granting special rights to holders when a specified event occurs;
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if the amount of principal or any premium or interest on debt securities of a series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will be determined;
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any special tax implications of the debt securities, including provisions for original issue discount securities, if offered;
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whether and upon what terms debt securities of a series may be defeased if different from the provisions set forth in the applicable
indenture;
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with regard to the debt securities of any series that do not bear interest, the dates for certain required reports to the trustee;
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whether the debt securities of the series will be issued as unrestricted securities or restricted securities, and, if issued
as restricted securities, the rule or regulation promulgated under the Securities Act in reliance on which they will be sold;
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whether the series will be issued with guarantees and, if so, the identity of the guarantor and the terms, if any, of any guarantee
of the payment of principal and interest, if any, with respect to the series and any corresponding changes to the indenture as
then in effect;
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if the debt securities are subordinated debt securities, the subordination terms of the debt securities and any related guarantee;
and
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any and all additional, eliminated or changed terms that shall apply to the debt securities of the series, including any terms
that may be required by or advisable under United States laws or regulations, including the Securities Act and the rules and regulations
promulgated thereunder, or advisable in connection with the marketing of debt securities of that series.
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“Principal” when used herein
includes any premium on any series of the debt securities.
Unless otherwise provided in the prospectus
supplement relating to any debt securities, principal and interest, if any, will be payable, and transfers of the debt securities
may be registered, at the office or offices or agency we maintain for such purposes, provided that payment of interest on the debt
securities will be paid at such place by check mailed to the persons entitled thereto at the addresses of such persons appearing
on the security register. Interest on the debt securities, if any, will be payable on any interest payment date to the persons
in whose names the debt securities are registered at the close of business on the record date for such interest payment.
The debt securities may be issued in fully
registered form. Additionally, the debt securities may be represented in whole or in part by one or more global notes registered
in the name of a depository or its nominee and, if so represented, interests in such global note will be shown on, and transfers
thereof will be effected only through, records maintained by the designated depository and its participants.
Unless otherwise provided in the prospectus
supplement relating to any debt securities, the debt securities may be exchanged for an equal aggregate principal amount of debt
securities of the same series and date of maturity in such authorized denominations as may be requested upon surrender of the debt
securities at an agency that we maintain for such purpose and upon fulfillment of all other requirements of such agent. We may
require payment of an amount sufficient to cover any associated tax or other governmental charge.
The indentures require the annual filing
by Northwest Biotherapeutics with the trustee of a certificate as to compliance with certain covenants contained in the indentures.
We will comply with Section 14(e) under
the Exchange Act, to the extent applicable, and any other tender offer rules under the Exchange Act that may be applicable, in
connection with any obligation to purchase debt securities at the option of the holders thereof. Any such obligation applicable
to a series of debt securities will be described in the prospectus supplement relating thereto.
Unless otherwise described in a prospectus
supplement relating to any debt securities, there are no covenants or provisions contained in the indentures that may afford the
holders of debt securities protection in the event that we enter into a highly leveraged transaction.
The statements made hereunder relating to
the indentures and the debt securities are summaries of certain provisions thereof and are qualified in their entirety by reference
to all provisions of the indentures and the debt securities and the descriptions thereof, if different, in the applicable prospectus
supplement.
Form of the Debt Securities
The indentures may provide that we may issue
debt securities in the forms, including temporary or definitive global form, established by a board resolution or in a supplemental
indenture.
Unless indicated otherwise in the applicable
prospectus supplement, we will issue debt securities in denominations of any multiple of $1,000, and interest on the debt securities,
if any, will be computed on the basis of a 360-day year of twelve 30-day months.
Registration, Transfer, Payment and Paying Agent
We will maintain an office or agency where
the debt securities may be presented for payment, registration of transfer and exchange, and, if applicable, for conversion. The
indenture trustee is appointed security registrar for purposes of registering, and registering transfers of, the debt securities.
Unless otherwise indicated in a board resolution or supplemental indenture, the indenture trustee also will act as paying agent,
and will be authorized to pay principal and interest, if any, on any debt security of any series.
There will be no service charge for any
registration of transfer or exchange of debt securities, but we or the indenture trustee may require a holder to pay any tax or
other governmental charge that may be imposed in connection with any registration of transfer or exchange of the debt securities,
other than certain exchanges not involving any transfer, and other than certain exchanges or transfers as may be specified in a
board resolution or supplemental indenture.
Global Debt Securities
Unless otherwise indicated in the applicable
prospectus supplement for a series of debt securities, each series of the debt securities will be issued in global form, which
means that we will deposit with the depositary identified in the applicable prospectus supplement (or its custodian) one or more
certificates representing the entire series, as described below under “Book-Entry Procedures and Settlement.” Global
debt securities may be issued in either temporary or definitive form.
The applicable prospectus supplement will
describe any limitations and restrictions relating to a series of global debt securities.
Subordination of Subordinated Debt Securities
We will set forth in the applicable prospectus
supplement the terms and conditions, if any, upon which any series of subordinated debt securities is subordinated to debt securities
of another series or to our other indebtedness. The terms will include a description of:
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the indebtedness ranking senior to the debt securities being offered;
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the restrictions, if any, on payments to the holders of the debt securities being offered while a default with respect to the
senior indebtedness is continuing; and
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(3)
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the provisions requiring holders of the debt securities being offered to remit some payments to the holders of senior indebtedness.
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Events of Default
Except as otherwise set forth in the prospectus
supplement relating to any debt securities, an event of default with respect to the debt securities of any series is defined in
the indentures as:
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default in the payment of any installment of interest upon any of the debt securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of 30 days after notice of default;
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(2)
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default in the payment of all or any part of the principal of or premium, if any, on any of the debt securities of such series
as and when the same shall become due and payable either at maturity, upon any redemption or repurchase, by declaration or otherwise,
and continuance of such default for a period of 30 days after notice of default;
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(3)
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default in the performance, or breach, of any other covenant or warranty of Northwest Biotherapeutics in respect of the debt
securities of such series and any related guarantee or set forth in the applicable indenture (other than the failure to comply
with any covenant or agreement to file with the trustee information required to be filed with the SEC or a default in the performance
or breach of a covenant or warranty included in the applicable indenture solely for the benefit of one or more series of debt securities
other than such series) and continuance of such default or breach for a period of 90 days after due notice by the trustee or by
the holders of at least 25% in principal amount of the outstanding securities of such series; or
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(4)
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certain events of bankruptcy, insolvency or reorganization of Northwest Biotherapeutics.
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Except as otherwise set forth in the prospectus
supplement relating to any debt securities, any failure to perform, or breach of, any covenant or agreement by Northwest Biotherapeutics
in respect of the debt securities with respect to the filing with the trustee of the information required to be filed with the
SEC shall not be a default or an event of default. Remedies against Northwest Biotherapeutics for any such failure or breach will
be limited to liquidated damages. Except as otherwise set forth in the prospectus supplement relating to any debt securities, if
there is such a failure or breach and continuance of such failure or breach for a period of 90 days after the date on which there
has been given, by registered or certified mail, to Northwest Biotherapeutics by the trustee or to Northwest Biotherapeutics and
the trustee by the holders of at least 25% in principal amount of the outstanding debt securities of such series, a written notice
specifying such failure or breach and requiring it to be remedied and stating that such notice is a “Notice of Reporting
Noncompliance” under the indenture, Northwest Biotherapeutics will pay liquidated damages to all holders of debt securities,
at a rate per year equal to 0.25% of the principal amount of such debt securities from the 90th day following such notice to and
including the 150th day following such notice and at a rate per year equal to 0.5% of the principal amount of such Securities from
and including the 151st day following such notice, until such failure or breach is cured.
Additional Events of Default may be added
for the benefit of holders of certain series of debt securities that, if added, will be described in the prospectus supplement
relating to such debt securities.
Except as otherwise set forth in the prospectus
supplement relating to any debt securities, if an event of default shall have occurred and be continuing in respect of a series
of debt securities, in each and every case, unless the principal of all the debt securities of such series shall have already become
due and payable, either the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities of
such series then outstanding, by notice in writing to Northwest Biotherapeutics and, if given by such holders, to the trustee may
declare the unpaid principal of all the debt securities to be due and payable immediately.
Except as otherwise set forth in the prospectus
supplement relating to any debt securities, the holders of a majority in aggregate principal amount of a series of debt securities,
by written notice to Northwest Biotherapeutics and the trustee may temporarily or permanently waive any existing default in the
performance of any of the covenants contained in the indenture or established with respect to such series of debt securities and
its consequences. Upon any such waiver, the default covered thereby and any event of default arising therefrom shall be deemed
to be cured to the extent of such waiver for all purposes of the indenture.
Except as otherwise set forth in the prospectus
supplement relating to any debt securities, the holders of a majority in aggregate principal amount of the outstanding debt securities
of a series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of such series; provided,
however, that such direction shall not be in conflict with any rule of law or with the indenture or be unduly prejudicial to the
rights of holders of securities of any other outstanding series of debt securities. Subject to the terms of the indenture, the
trustee shall have the right to decline to follow any such direction if the trustee in good faith shall determine that the proceeding
so directed would involve the trustee in personal liability.
Merger
Each indenture provides that Northwest Biotherapeutics
may merge or consolidate with any other person or sell or convey all or substantially all of its assets to any person if:
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either (a) Northwest Biotherapeutics is the continuing company or (b) the successor person expressly assumes all of the obligations
of the Company under the applicable indenture, is an entity treated as a corporation for U.S. tax purposes and obtains either (x)
an opinion, in form and substance reasonably acceptable to the Trustee or (y) a ruling from the U.S. Internal Revenue Service,
in either case (x) or (y) to the effect that such merger or consolidation, or such sale or conveyance, will not result in an exchange
of the debt securities for new debt instruments for U.S. federal income tax purposes; and
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(2)
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no event of default and no event that, after notice or lapse of time or both, would become an event of default shall be continuing
immediately after such merger or consolidation, or such sale or conveyance.
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Satisfaction and Discharge of Indentures
The indenture with respect to any series
of debt securities (except for certain specified surviving obligations, including our obligation to pay the principal of and interest,
if any, on the debt securities of such series) will be discharged and cancelled upon the satisfaction of certain conditions, including
the payment of all the debt securities of such series or the deposit with the trustee under such indenture of cash or appropriate
government obligations or a combination thereof sufficient for such payment or redemption in accordance with the applicable indenture
and the terms of the debt securities of such series.
Modification of the Indentures
Northwest Biotherapeutics and the trustee
may from time to time and at any time enter into an indenture or indentures supplemental to the indenture without the consent of
any holders of any series of securities, including for one or more of the following purposes:
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to cure any ambiguity, defect or inconsistency in the indenture or debt securities of any series, including making any such
changes as are required for the indenture to comply with the Trust Indenture Act;
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to add an additional obligor on the debt securities or to evidence the succession of another person to Northwest Biotherapeutics,
or successive successions, and the assumption by the successor person of the covenants, agreements and obligations of Northwest
Biotherapeutics pursuant to provisions in the indenture concerning consolidation, merger, the sale of assets or successor entities;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to the covenants of Northwest Biotherapeutics for the benefit of the holders of any outstanding series of debt securities
or to surrender any of Northwest Biotherapeutics’ rights or powers under the indenture;
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to add any additional Events of Default for the benefit of the holders of any outstanding series of debt securities;
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to change or eliminate any of the provisions of the indenture, provided that any such change or elimination shall not become
effective with respect to any outstanding debt security of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
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to secure the debt securities of any series;
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to make any other change that does not adversely affect the rights of any holder of outstanding debt securities in any material
respect;
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to provide for the issuance of and establish the form and terms and conditions of a series of debt securities, to provide which,
if any, of the covenants of Northwest Biotherapeutics shall apply to such series, to provide which of the events of default shall
apply to such series, to name one or more guarantors and provide for guarantees of such series of debt securities, to provide for
the terms and conditions upon which any guarantees by a guarantor of such series may be released or terminated, or to define the
rights of the holders of such series of debt securities;
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to issue additional debt securities of any series; provided that such additional debt securities have the same terms as, and
be deemed part of the same series as, the applicable series of debt securities to the extent required under the indenture; or
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to evidence and provide for the acceptance of appointment by a successor trustee with respect to the debt securities of one
or more series and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate
the administration of the trust by more than one trustee.
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In addition, under the indenture, with the
written consent of the holders of not less than a majority in aggregate principal amount of the debt securities of each series
at the time outstanding that is affected, Northwest Biotherapeutics and the trustee, from time to time and at any time may enter
into an indenture or indentures to supplement the indenture. However, except as otherwise set forth in the prospectus supplement
relating to any debt securities, the following changes may only be made with the consent of each holder of outstanding debt securities
affected:
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extend a fixed maturity of or any installment of principal of any debt securities of any series or reduce the principal amount
thereof or reduce the amount of principal of any original issue discount security that would be due and payable upon declaration
of acceleration of the maturity thereof;
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reduce the rate of or extend the time for payment of interest on any debt security of any series;
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reduce the premium payable upon the redemption of any debt security;
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make any debt security payable in currency other than that stated in the debt security;
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impair the right to institute suit for the enforcement of any payment on or after the fixed maturity thereof or, in the case
of redemption, on or after the redemption date;
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modify the subordination provisions applicable to any debt security or the related guarantee in a manner materially adverse
to the holder thereof; or
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reduce the percentage of debt securities, the holders of which are required to consent to any such supplemental indenture or
indentures.
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A supplemental indenture that changes or
eliminates any covenant, event of default or other provision of the indenture that has been expressly included solely for the benefit
of one or more particular series of securities, if any, or which modifies the rights of the holders of securities of such series
with respect to such covenant, event of default or other provision, shall be deemed not to affect the rights under the indenture
of the holders of securities of any other series.
It will not be necessary for the consent
of the holders to approve the particular form of any proposed supplement, amendment or waiver, but it shall be sufficient if such
consent approves the substance of it.
Defeasance and Discharge of Obligations
Northwest Biotherapeutics’ obligations
with respect to a series of debt securities will be discharged upon compliance with the conditions under the caption “Covenant
Defeasance” if, with respect to all debt securities of such series that have not been previously delivered to the trustee
for cancellation or that have not become due and payable as described below, such debt securities of such series have been paid
by Northwest Biotherapeutics by depositing irrevocably with the trustee, in trust, funds or governmental obligations, or a combination
thereof, sufficient, in the opinion of a nationally recognized firm of certified public accountants, to pay at maturity or upon
redemption all such outstanding debt securities of such series, such deposit to include: principal; premium, if any; interest due
or to become due to such date of maturity or date fixed for redemption, as the case may be; and all other payments due under the
terms of the indenture with respect to the debt securities of such series.
Notwithstanding the above, except as otherwise
set forth in the prospectus supplement relating to any debt securities, Northwest Biotherapeutics may not be discharged from the
following obligations, which will survive until such date of maturity or the redemption date for a series of debt securities: to
make any interest or principal payments that may be required; to register the transfer or exchange of a series of debt securities;
to execute and authenticate a series of debt securities; to replace stolen, lost or mutilated debt securities of such series; to
maintain an office or agency; to maintain paying agencies; and to appoint new trustees as required.
Except as otherwise set forth in the prospectus
supplement relating to any debt securities, Northwest Biotherapeutics also may not be discharged from the following obligations
which will survive the satisfaction and discharge of a series of debt securities: to compensate and reimburse the trustee in accordance
with the terms of the indenture; to receive unclaimed payments held by the trustee for at least one year after the date upon which
the principal, if any, or interest on a series of debt securities shall have respectively come due and payable and remit those
payments to the holders if required; and to withhold or deduct taxes as provided in the indenture.
Covenant Defeasance
Upon compliance with specified conditions,
Northwest Biotherapeutics will not be required to comply with some covenants contained in the indenture, and any omission to comply
with the obligations will not constitute a default or event of default relating to a series of debt securities, or, if applicable,
Northwest Biotherapeutics’ obligations with respect to a series of debt securities will be discharged. These conditions,
except as modified by a prospectus supplement, are:
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Northwest Biotherapeutics irrevocably deposits in trust with the trustee or, at the option of the trustee, with a trustee satisfactory
to the trustee and Northwest Biotherapeutics under the terms of an irrevocable trust agreement in form and substance satisfactory
to the trustee, funds or governmental obligations or a combination thereof sufficient, in the opinion of a nationally recognized
firm of certified public accountants, to pay principal of, premium, if any, and interest on the outstanding debt securities of
such series to maturity or redemption, as the case may be, and to pay all other amounts payable by it hereunder, provided that
(A) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such funds or the proceeds of such governmental
obligations to the trustee and (B) the trustee shall have been irrevocably instructed to apply such funds or the proceeds of such
governmental obligations to the payment of principal, premium, if any, and interest with respect to such series of debt securities;
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Northwest Biotherapeutics delivers to the trustee an officer’s certificate stating that all conditions precedent specified
herein relating to defeasance or covenant defeasance, as the case may be, have been complied with, and an opinion of counsel to
the same effect;
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no event of default shall have occurred and be continuing, and no event which with notice or lapse of time or both would become
such an event of default shall have occurred and be continuing, on the date of such deposit;
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Northwest Biotherapeutics shall have delivered to the trustee an opinion of counsel or a ruling received from the Internal
Revenue Service to the effect that the holders of such series of debt securities will not recognize income, gain or loss for federal
income tax purposes as a result of Northwest Biotherapeutics’ exercise of such defeasance or covenant defeasance and will
be subject to U.S. Federal income tax in the same amount and in the same manner and at the same times as would have been the case
if such election had not been exercised;
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such defeasance or covenant defeasance shall not (i) cause the trustee to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any securities or (ii) result in the trust arising from such deposit to constitute, unless it is
registered as such, a regulated investment company under the Investment Company Act of 1940; and
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such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions
or limitations which may be imposed on Northwest Biotherapeutics pursuant to the indenture.
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Description
Of THE SHARE PURCHASE CONTRACTS AND THE SHARE PURCHASE UNITS
We may issue share purchase contracts representing
contracts obligating holders to purchase from us, and us to sell to the holders, a specified or varying number of our shares of
common stock and/or preferred stock at a future date or dates. The price per share and the number of shares may be fixed at the
time the share purchase contracts are entered into or may be determined by reference to a specific formula set forth in the share
purchase contracts. The share purchase contracts may be entered into separately or as a part of a share purchase unit that consists
of a share purchase contract and either shares of preferred stock, depositary shares, debt securities or debt obligations of third
parties (including United States treasury securities or other share purchase contracts), or any combination of the foregoing that
would secure the holders’ obligations to purchase the securities under such share purchase contract. The share purchase contracts
may require us to make periodic payments to the holders of the share purchase units. These payments may be unsecured or prefunded
and may be paid on a current or on a deferred basis. The share purchase contracts may require holders to secure their obligations
under the contracts in a specified manner.
The applicable prospectus supplement will
describe the terms of any share purchase contracts or share purchase units and, if applicable, prepaid share purchase contracts.
Description
Of Units
The following description, together with
additional information and/or modifications that we include in any applicable prospectus supplement, summarizes material terms
and provisions upon which we may offer units under this prospectus. Units may be offered independently or together with common
stock, preferred stock, depositary shares, debt securities, warrants, and/or share purchase contracts offered by any prospectus
supplement, and may be attached to or separate from those securities.
While the terms summarized below may apply
generally to future units that we may offer under this prospectus, we will describe the particular terms of any series of units
that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below.
We will incorporate by reference into the
registration statement of which this prospectus is a part a form of unit agreement, including a form of unit certificate, if any,
that describes the terms of the series of units upon which we may offer units before the issuance of such units. The following
summaries of material provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference
to, all the provisions of the unit agreement applicable to a particular series of and to the applicable prospectus supplements
related to the units.
General
We may issue units consisting of common
stock, preferred stock, depositary shares, debt securities, warrants, share purchase contracts or any combination thereof. Each
unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of
a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued
may provide that the securities included in the unit may not be held or transferred separately, at any time, or at any time before
a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units, including the following:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units.
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The provisions described in this section,
as well as those described under “Description of Common Stock,” “Description of Preferred Stock,” “Description
of Depositary Shares,” “Description of Warrants,” “Description of Debt Securities” and “Description
of Units” will apply to each unit and to any common stock, preferred stock, depositary share, debt security or warrant included
in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in
such numerous distinct series as we determine.
Certain
Anti-Takeover And Indemnification Provisions Of Our Certificate Of
Incorporation And By-Laws And Delaware Law
The following is a summary of certain anti-takeover
and indemnification provisions of the DGCL and our Certificate of Incorporation and Bylaws which affect us and our stockholders.
Such provisions of the DGCL and our Certificate of Incorporation and Bylaws may make more difficult the acquisition of the Company
by tender offer, a proxy contest or otherwise or the removal of our officers and directors. The description below is intended as
only a summary. You can access more information by referring to the DGCL and our Certificate of Incorporation and Bylaws, and the
following summary is qualified in its entirety by reference such documents and the applicable provisions of the DGCL.
Certificate of Incorporation and Bylaws
Our Certificate of Incorporation, as amended,
and our Bylaws, each as currently in effect, also contain certain provisions that may delay, discourage or make more difficult
a third-party acquisition of control of us:
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a classified board of directors, with three classes of directors, each serving for a staggered three-year term, such that not
all members of the board of directors may be elected at one time;
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any vacancies on the board of directors may be filled by a majority of the directors then serving, although not a quorum;
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a director may be removed from office only for cause at a special meeting of stockholders called for that purpose, by the affirmative
vote of the holders of not less than two-thirds of the shares entitled to elect the director or directors whose removal is being
sought;
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the ability of the board of directors to issue preferred stock that could dilute the stock ownership of a potential unsolicited
acquirer and so possibly hinder an acquisition of control of us that is not approved by our board of directors, including through
the use of preferred stock in connection with a shareholder rights plan which we could adopt by action of the board of directors;
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the requirement that certain provisions of the Certificate of Incorporation, including some of the provisions discussed herein,
can only be amended with an affirmative vote of the holders at least two-thirds of the then-outstanding voting stock;
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the requirement that the Bylaws may be amended by the board of directors or by the stockholders; provided that in the case
of amendments by the stockholders the affirmative vote of at least 66 2/3% of the then outstanding voting stock is required; and
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the inability of our stockholders to call a special meeting of stockholders, the limitation of matters to be acted upon at
an annual meeting of stockholders to those matters proposed by the Company or properly brought before the meeting and the limitation
of matters to be acted upon at a special meeting of stockholders to matters which we place on the agenda for the meeting.
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Delaware Takeover Statute
We are governed by Section 203 of the DGCL,
which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of
three years after the date that the stockholder became an interested stockholder, unless:
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before that date, the board of directors of the corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes
of determining the number of shares outstanding those shares owned by persons who are directors and also officers or which can
be issued under employee stock plans in which employee participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer; or
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on or after that date, the business combination is approved by the board of directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock
that is not owned by the interested stockholder.
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In general, Section 203 defines an interested
stockholder as any entity or person who, with affiliates and associates owns, or within the three year period immediately prior
to the business combination, beneficially owned 15% or more of the outstanding voting stock of the corporation. Section 203 defines
business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject to specified exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of
the corporation to the interested stockholder;
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any transaction involving the corporation that increases the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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Copies of our Certificate of Incorporation
and Bylaws, as amended, have been filed with and are publicly available at or from the SEC as described under the heading “Where
You Can Find More Information.”
Limitation of Liability; Indemnification
Our Certificate of Incorporation contains
certain provisions permitted under the DGCL relating to the liability of directors. These provisions eliminate a director’s
personal liability for monetary damages resulting from a breach of fiduciary duty to the fullest extent permitted by the DGCL.
Our Bylaws also provide that we must indemnify our directors and officers to the fullest extent permitted by the DGCL and also
provide that we must pay expenses, as incurred, to our directors and officers in connection with a legal proceeding to the fullest
extent permitted by the DGCL, subject to very limited exceptions.
Insofar as indemnification for liabilities
under the Securities Act may be permitted to directors, officers and controlling persons of Northwest Biotherapeutics pursuant
to the foregoing provisions or otherwise, the SEC has announced that, in the opinion of the SEC, indemnification under the Securities
Act is against public policy and is unenforceable.
Plan Of
Distribution
We may offer and sell the securities described in this prospectus:
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through one or more underwriters or dealers;
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through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as
agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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directly to one or more purchasers;
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in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act; or
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through a combination of any of these methods of sale.
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The distribution of the securities described in this prospectus
may be effected from time to time in one or more transactions either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices relating to the prevailing market prices; or
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Offers to purchase the securities may be
solicited by agents designated by us from time to time. Any agent involved in the offer or sale of the securities will be named,
and any commissions payable by us to the agent will be described, in the applicable prospectus supplement. Unless otherwise indicated
in the applicable prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
Any agent may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities so offered and sold.
If we offer and sell securities through
an underwriter or underwriters, we will execute an underwriting agreement with the underwriter or underwriters. The names of the
specific managing underwriter or underwriters, as well as any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, which may be in the form of discounts, concessions or commissions, if any, will be
described in the applicable prospectus supplement, which will be used by the underwriters to make resales of the securities.
If we offer and sell securities through
a dealer, we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale. The name of the dealer and the terms of the
transactions will be set forth in the applicable prospectus supplement. Any dealer may be deemed to be an underwriter, as that
term is defined in the Securities Act, of the securities so offered and sold.
We may solicit offers to purchase the securities
directly and we may sell the securities directly to institutional or other investors. The terms of these sales, including the terms
of any bidding or auction process, if utilized, will be described in the applicable prospectus supplement. We may enter into agreements
with agents, underwriters and dealers under which we may agree to indemnify the agents, underwriters and dealers against certain
liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make with respect
to these liabilities. The terms and conditions of this indemnification or contribution will be described in the applicable prospectus
supplement. Some of the agents, underwriters or dealers, or their affiliates, may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
If the applicable prospectus supplement
indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities
at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commissions payable for solicitation of those contracts.
We may from time to time engage a firm to
act as our agent for one or more offerings of our securities. We sometimes refer to this agent as our “offering agent.”
If we reach an agreement with an offering agent with respect to a specific offering, including the number of securities and any
minimum price below which sales may not be made, then the offering agent will try to sell such securities on the agreed terms.
The offering agent could make sales in privately negotiated transactions or any other method permitted by law, including sales
deemed to be an “at the market” offering as defined in Rule 415 promulgated under the Securities Act, including sales
made directly on the OTCQB tier of the OTC Markets, or sales made to or through a market maker other than on an exchange. The offering
agent will be deemed to be an underwriter, as that term is defined in the Securities Act with respect to any sales effected through
an “at the market” offering.
Unless otherwise indicated in the applicable
prospectus supplement, all debt securities, depositary shares, warrants and preferred stock will be new issues of securities with
no established trading market. Unless otherwise indicated in the applicable prospectus supplement, we do not expect to list the
securities on a securities exchange, except for the common stock, which is listed on the OTCQB tier of the OTC Markets. Underwriters
involved in the public offering and sale of these securities may make a market in the securities. They are not obligated to make
a market, however, and may discontinue market making activity at any time. We cannot give any assurance as to the liquidity of
the trading market for any of these securities.
In connection with any particular offering
pursuant to this shelf registration statement, an underwriter may engage in stabilizing transactions, over-allotment transactions,
syndicate covering transactions and penalty bids.
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Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified
maximum price.
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Over-allotment involves sales by an underwriter of securities in excess of the number of securities an underwriter is obligated
to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short
position. In a covered short position, the number of securities over-allotted by an underwriter is not greater than the number
of securities that it may purchase pursuant to an over-allotment option. In a naked short position the number of securities involved
is greater than the number of securities in an over-allotment option. An underwriter may close out any short position by either
exercising its over-allotment option and/or purchasing securities in the open market.
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Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed
in order to cover syndicate short positions where there is an over-allotment option. In determining the source of securities to
close out the short position, an underwriter will consider, among other things, the price of securities available for purchase
in the open market as compared to the price at which they may purchase securities through the over-allotment option. If an underwriter
sells more securities than could be covered by the over-allotment option, a naked short position, the position can only be closed
out by buying securities in the open market. A naked short position is more likely to be created if an underwriter is concerned
that there could be downward pressure on the price of the securities in the open market after pricing that could adversely affect
investors who purchase in the offering.
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Penalty bids permit representatives to reclaim a selling concession from a syndicate member when the securities originally
sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
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These stabilizing transactions, syndicate
covering transactions and penalty bids may have the effect of raising or maintaining the market price of our securities or preventing
or retarding a decline in the market price of the securities. As a result, the price of our securities may be higher than the price
that might otherwise exist in the open market. These transactions may be effected on the OTCQB tier of the OTC Markets or otherwise
and, if commenced, may be discontinued at any time.
We, the underwriters or other agents may
engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other
hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities
acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to
changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending
or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close
out any related open borrowings of the securities.
We may also make sales through the Internet
or through other electronic means. Since we may from time to time elect to offer securities directly to the public, with or without
the involvement of agents, underwriters or dealers, utilizing the Internet (sometimes referred to as the “world wide web”)
or other forms of electronic bidding or ordering systems for the pricing and allocation of such securities, you will want to pay
particular attention to the description of that system we will provide in a prospectus supplement.
Such electronic system may allow bidders
to directly participate, through electronic access to an auction site, by submitting conditional offers to buy that are subject
to acceptance by us, and which may directly affect the price or other terms and conditions at which such securities are sold. These
bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant information to assist
in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted, and whether a bidder’s
individual bids would be accepted, prorated or rejected. For example, in the case of a debt security, the clearing spread could
be indicated as a number of “basis points” above an index treasury note. Of course, many pricing methods can and may
also be used.
Upon completion of such an electronic auction
process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering price at which securities
would be sold and the allocation of securities among bidders would be based in whole or in part on the results of the Internet
or other electronic bidding process or auction.
Experts
The consolidated financial statements
of Northwest Biotherapeutics appearing in Northwest Biotherapeutics’ Annual Report on Form 10-K for the years ended
December 31, 2018 have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their
report thereon, included therein (which contains an explanatory paragraph expressing substantial doubt about the Company's ability to continue as a going concern), and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting
and auditing.
Validity
Of The Securities
Certain legal matters, including the legality
of the securities offered, will be passed upon for us by Gibson, Dunn & Crutcher LLP or others named in the applicable prospectus
supplement. If the securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters
by counsel identified in the applicable prospectus supplement.
Where You
Can Find More Information
We are subject to the reporting requirements
of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. SEC filings
are available at the SEC’s website at http://www.sec.gov. Information about us, including a link to our SEC filings, is
also available on our website at’’ www.nwbio.com. However, the information
included on our website is not a part of this prospectus or any prospectus supplement.
This prospectus is part of a registration
statement on Form S-3 that we filed with the SEC under the Securities Act and therefore omits certain information contained in
the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this
prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to
any contract or other document. You can obtain a copy of the registration statement from the SEC’s website.
Incorporation
Of Certain Documents By Reference
The SEC allows us to “incorporate
by reference” into this prospectus information that we file with the SEC in other documents. Incorporation by reference allows
us to disclose important information to you by referring you to those other documents that contain that information. Any information
that we incorporate by reference is considered part of this prospectus. The documents and reports that we list below are incorporated
by reference into this prospectus. In addition, all documents and reports which we file pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus are incorporated by reference in this prospectus as of the respective
filing dates of these documents and reports, provided, however, that we are not incorporating by reference any information furnished
(but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K. Statements contained in documents that we file
with the SEC that are incorporated by reference in this prospectus will automatically update and supersede information contained
in this prospectus, including information in previously filed documents or reports that have been incorporated by reference in
this prospectus, to the extent the new information differs from or is inconsistent with the old information.
We have filed the following documents with
the SEC, which documents are incorporated herein by reference as of their respective dates of filing:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed on April 2, 2019;
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Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2019 and June 30, 2019, filed on May 10, 2019 and
August 9, 2019, respectively.
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All of our filings pursuant to the Exchange Act after the date of filing this initial registration statement and prior to the
effectiveness of this registration statement; and
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(5)
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The description of our common stock contained in our Registration Statement on Form 8-A filed on November 14, 2012, including
any amendments or reports filed for the purpose of updating that description.
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You may request a copy of these documents,
which will be provided to you at no cost, by contacting:
Northwest Biotherapeutics, Inc.
4800 Montgomery, Lane, Suite 800
Bethesda, MD 20814
Attention: Corporate Secretary
(240) 497-9024
You should rely only on the information
contained in this prospectus, including information incorporated by reference as described above, or any prospectus supplement
that we have specifically referred you to. We have not authorized anyone else to provide you with different information. You should
not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date
on the front of those documents or that any document incorporated by reference is accurate as of any date other than its filing
date. You should not consider this prospectus to be an offer or solicitation relating to the securities in any jurisdiction in
which such an offer or solicitation relating to the securities is not authorized. Furthermore, you should not consider this prospectus
to be an offer or solicitation relating to the securities if the person making the offer or solicitation is not qualified to do
so, or if it is unlawful for you to receive such an offer or solicitation.
12,475,253 Shares of Common Stock
Prospectus Supplement dated January 3, 2020
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