EXHIBIT 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is made effective as of
June 30, 2003, by and between NEXUS CANYON PARK LLC, a Delaware limited
liability company ("Nexus" or "Landlord"), and NORTHWEST BIOTHERAPEUTICS, INC.,
a Delaware corporation ("NW Biotherapeutics" or "Tenant"), with reference to the
following facts:
Nexus is the landlord and NW Biotherapeutics is the tenant under that
certain Lease dated October 22, 1999, as amended by that certain First Amendment
to Lease dated April 15, 2003 (the "Lease"), for those certain premises
consisting of approximately 34,104 square feet of Rentable Area in the Building
located at 00000- 00xx Xxxxx X.X., Xxxxxxx, Xxxxxxxxxx (the "Premises").
The Lease terminates June 30, 2010. Tenant has indicated that it
anticipates difficulty in completing the terms of the Lease. Landlord is willing
to permit premature termination of the Lease and excuse future performance by
Tenant of Lease obligations on the terms and conditions described below.
NOW, THEREFORE in consideration of the promises and other valuable
consideration described below, the receipt of which is hereby acknowledged,
Landlord and Tenant agree as follows:
1. TERMINATION OF LEASE. The Lease is hereby terminated effective
midnight, September 30, 2003. Concurrently with the execution of this Agreement,
but subject to the provisions of Paragraph 2 below, Tenant shall pay the monthly
installments of Basic Annual Rent and Operating Expenses for the months of June,
July, August, and September, 2003. Nothing herein shall prevent Landlord from
earlier terminating the Lease at any time after July 1, 2003 and Tenant shall
not be entitled to any refund attributable to the remaining balance of the term
through September 30, 2003.
2. SECURITY DEPOSIT. Landlord and Tenant agree that concurrently
with the execution of this Agreement, Landlord shall apply the proceeds of the
security deposit held by Landlord under Article 9 of the Lease to payment of
amounts owing for Basic Annual Rent and Operating Expenses for the months of
June, July, August and September, 2003. Landlord and Tenant further agree that
the balance of the security deposit held by Landlord is hereby forfeited by
Tenant and shall be retained by Landlord as consideration, along with the
additional consideration as set forth in paragraph 5 of this Agreement, for
permitting premature termination of the Lease and excusing Tenant's future
performance of Lease obligations.
3. VACATION OF PREMISES. Landlord and Tenant acknowledge that
Tenant has vacated the Premises as of June 30, 2003 and relinquished possession
of the Premises to Landlord as of that date. Tenant hereby surrenders all
fixtures and improvements with the Premises, except a dishwasher and sink, which
has been removed by Tenant prior to vacating the Premises. All fixtures,
equipment, improvements and other personal property remaining on the Premises
after delivery of possession to Landlord shall be and become the property of
Landlord, and Tenant waives and relinquishes any claim thereto. Landlord hereby
accepts the Premises in
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their present state of repair, subject to Tenant's responsibility for Hazardous
Materials pursuant to Section 39.3 of the Lease.
4. ENVIRONMENTAL ASSESSMENT. landlord acknowledges receipt of
$2,500 from tenant as its contribution toward the cost of such environmental
assessment(s) of the premises landlord elects to undertake. landlord further
acknowledges completion of the phase I environmental assessment of the premises
and elects not to perform a phase II assessment.
5. STOCK. As additional consideration and concurrently with the
execution of this Agreement, Tenant will issue to Landlord 90,000 unregistered
shares of Tenant's stock, subject to such reasonable and customary restrictions
as Tenant's board of directors may stipulate.
6. PAYMENT OF JUNE EXPENSES. Tenant will reimburse Landlord,
promptly upon receipt of the statement from Landlord, for water expenses and any
other Operating Expenses for the month of June, 2003 which are separately billed
to Tenant after receipt of the statement from the vendor or service provider;
and will pay directly to the vendor or service provider expenses of Tenant's
separately metered utilities and all maintenance contracts for HVAC equipment,
deionized water system, elevator, and any and all other systems servicing the
Premises for June, 2003. Concurrently with the execution of this Agreement,
Tenant will provide to Landlord copies of all such service and maintenance
contracts.
7. RELEASE. As of June 30, 2003, Landlord and Tenant, each for
itself and for its legal representatives and assigns, hereby releases and
forever discharges the other party, and the other party's officers, directors,
shareholders, employees, and agents, from any and all claims, demands, causes of
action, liability and damages that the releasing party may now have, or that may
subsequently accrue to the releasing party, whether known or unknown, and
whether or not ascertainable at the time of the execution of this release,
arising out of or related to the Lease, including, without limitation, any
claims, demands, causes of action, liability and damages for failure of Tenant
to pay rent or any other sums due or accruing under the Lease from and after
June 30, 2003, subject to payment of amounts owing under this Agreement,
provided, however, this release does not extend to, and Landlord does not
release Tenant, from any liability arising under this Agreement or related to
Hazardous Materials pursuant to Section 39.3 of the Lease. Provided Tenant
complies with all of its obligations hereunder, Landlord shall not claim or
declare any default by Tenant under, arising out of or related to the Lease.
8. MEMORANDUM OF SETTLEMENT AGREEMENT. The parties agree to
execute and record with the County Recorder of the County of Snohomish,
Washington, a memorandum of this Agreement or other instrument reasonably
necessary to release any interest in the property on which the Premises are
situated created by the Lease.
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9. AUTHORITY TO EXECUTE AGREEMENT. Each person executing this
Agreement represents that he or she is fully authorized to execute and deliver
this Agreement on behalf of such person or entity.
10. VENUE. This Agreement shall be interpreted under the laws of
the State of Washington. Venue for any cause of action arising out of or
relating to this Agreement shall lie in the Snohomish County Superior Court.
11. ATTORNEY FEES. In the event of litigation between the parties,
declaratory or otherwise, in connection or arising out of this Agreement, the
substantially prevailing party shall recover its costs, including expert's fees,
and attorneys' fees actually incurred, including for appeals.
Terms with an initial capital letter used herein which are not defined
herein shall have the meanings given them in the Lease.
IN WITNESS WHEREOF, for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto have executed this
Settlement Agreement on the dates indicated by their signatures below.
LANDLORD:
Dated: July 11, 2003
NEXUS CANYON PARK LLC
A Delaware limited liability company
By: Canyon Nexus, Inc.
A California corporation
Its Manager
By: /s/ Xxxxxxx X. Xxxxx
_____________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
TENANT:
Dated: July 9, 2003
NORTHWEST BIOTHERAPEUTICS, INC.
A Washington corporation
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
____________________________________
Title: Chairman and Chief Executive Officer
____________________________________
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On July 11, 2003, before me, the undersigned Notary Public in
and for said County and State, personally appeared /s/ Xxxxxxx X. Xxxxx
X personally known to me
_______
_______proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
Witness my hand and official seal. [ S E A L ]
/s/ Xxxxxxx Xxxxxx
Signature of Notary
STATE OF WASHINGTON )
) ss
COUNTY OF SNOHOMISH )
I certify that I know or have satisfactory evidence that /s/ Xxxxxx
Xxxxx is the person who appeared before me, and said person acknowledged that
said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it as the CEO & Chairman
of NORTHWEST BIOTHERAPEUTICS, INC., a corporation, to be the free and voluntary
act of such corporation for the uses and purposes mentioned in the instrument.
Dated this 9th day of July, 2003.
/s/ Xxxxx Xxxxx
_________________________________________________
Signature of Notary
Xxxxx Xxxxx
_______________________________________________________________________
Legibly Print or Stamp Name of Notary
Notary public in and for the state of Washington,
residing at 00000 00xx Xx., XX, Xxxxxxx, XX 00000
My appointment expires July 19, 2005
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