AMENDMENT
AGREEMENT
This Amendment Agreement (this
“ Agreement ”) shall be effective as of August
6, 2009 (the “ Effective Date ”), by and among
Genta
Incorporated , a Delaware corporation (the “
Company ”), and the undersigned parties whose names
are set forth on Exhibit A attached hereto (each a “
Holder ” and collectively the “ Holders
”). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the April 2009
Consent Agreement and/or the July 2009 Consent
Agreement.
Whereas
, in July 2009, in order to
facilitate the consummation of one or more financing transactions,
which could have included private placements or public offerings,
under which the Company desired to raise an aggregate in all such
transactions of up to $10,000,000 through the sale of securities
consisting of (i) up to $7,000,000 in principal amount of July 2009
Notes, (ii) up to $3,000,000 of common stock of the Company (the
“ Common Stock ”) and (iii) related warrants
(the “ Financing ”), on the terms set forth in
that certain Securities Purchase Agreement dated as of July 7,
2009, by and among the Company and the Purchasers listed on Exhibit
A thereto (the “ Purchase Agreement ”), the
parties entered into the July 2009 Consent Agreement;
Whereas
, the Company and the Holders desire
to extend the date of the additional closing under the Purchase
Agreement to, among other things, allow the Company additional time
to complete the public offering referenced in Section 1.2(b) of the
Purchase Agreement; and
Whereas
, the undersigned Holders represent
the required threshold to amend the provisions of each of the
agreements referenced below.
Now,
Therefore, in
consideration of the premises and mutual covenants herein below,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
(a) “
July 2009 Consent Agreement ” means that certain
Consent and Amendment Agreement dated as of July 6, 2009, among the
Company and the Purchasers listed on Exhibit A thereto.
(b) “
July 2009 Purchase Agreement ” means that certain
Securities Purchase Agreement dated as of July 7, 2009, by and
among the Company and the Purchasers listed on Exhibit A
thereto.
(c) “
Notes ” means the 2008 Notes, the April 2009 Notes and
the July 2009 Notes.
(d) “
Registration Rights Agreement ” means that certain
Registration Rights Agreement dated as of July 7, 2009, by and
among the Company and the Buyers listed on Schedule I attached
thereto.
2.
Amendment to the July 2009 Notes .
The Company and the undersigned Holders
representing at least two-thirds of the currently outstanding
principal amount of the July 2009 Notes hereby amend each of the
July 2009 Notes by deleting the definition of “Mandatory
Conversion Date” in the third sentence of Section 3.1(b) and
replacing such sentence with the following:
“As used
herein, a “Mandatory Conversion Date” shall be a date,
any time after January 1, 2010, on which the Daily VWAP equals or
has exceeded $0.50 (as appropriately adjusted for stock splits,
stock dividends, reorganizations, recapitalizations, stock
combinations and the like) for each of the ten (10) consecutive
prior Trading Days ending on the Trading Day immediately prior to
such date; provided, that the Equity Conditions shall have been
satisfied and the Common Stock shall have been Tradable on each
Trading Day during the period beginning on the first day of such
ten (10) day period and ending on the date of the delivery of such
shares of Common Stock pursuant to the mandatory
conversion.”
3.
Amendment to the July 2009 Consent Agreement .
The Company and
the undersigned Holders representing the Holders of at least
two-thirds of the currently outstanding and unexercised Purchase
Rights (as defined in the April 2009 Consent Agreement) and the
currently outstanding principal amount of New Notes (as defined in
the April 2009 Consent Agreement) issued upon exercise of the
Purchase Rights (together, as one class) hereby amend the July 2009
Consent Agreement as follows:
(a) The
first recital is hereby deleted in its entirety and replaced with
the following:
“
Whereas , in
order to facilitate the consummation of one or more financing
transactions, which may include private placements or public
offerings, under which the Company desires to raise an aggregate in
all such transactions of up to $13,000,000 through the sale of
securities consisting of (i) up to $9,100,000 in principal amount
of Senior Unsecured Convertible Notes (the “ July 2009
Notes ”), (ii) up to $3,900,000 of common stock of the
Company (the “ Common Stock ”) and (iii) related
warrants (the “ Financing ”), on substantially
the terms described in that certain term sheet attached hereto as
Exhibit B (the “ Term Sheet ”), the
parties desire to enter into this Agreement; and”
(b) The
reference to “aggregate amount of $7,000,000” in
Section 1(d) is hereby replaced with “aggregate amount of at
least $7,000,000”.
(c) The
second sentence of Section 2 is hereby deleted in its entirety and
replaced with the following:
“The
Company hereby agrees that prior to the consummation of the period
expiring fourteen (14) days after the date on which the Company
publicly releases detailed quantitative results regarding the
primary assessment of progression-free survival, one of the
co-primary endpoints of a Phase 3 trial of Genasense® plus
chemotherapy in patients with advanced melanoma, which the Company
refers to as AGENDA, without first obtaining the consent of at
least two-thirds of the currently outstanding and unexercised
Purchase Rights and the currently outstanding principal amount of
New Notes issued upon exercise of the Purchase Rights (together, as
one class), the Company shall not close or publicly announce its
entry into any debt or equity financing or any other capital
raising transaction or transactions with any person, other than the
Financing.”
(d) Section
4 is hereby deleted in its entirety and replaced with the
following:
“4.
Covenants of the Holders . Each Holder of a 2008
Note, and each Holder of an April 2009 Note, hereby agrees that,
any time after January 1, 2010, such Holder will convert all 2008
Notes held by such Holder and all 2009 Notes held by such Holder
into shares of Common Stock, including any PIK Notes, and any 2008
Notes or 2009 Notes issuable upon exercise of any Purchase Options,
Purchase Rights and any other right to acquire 2008 Notes or 2009
Notes on or before the fifth Trading Day following the receipt by
such Holder of the written request of the Company (the
“Conversion Notice”) in the event that on the date that
the Conversion Notice is sent by the Company, the Daily VWAP has
exceeded $0.50 (which shall be appropriately adjusted for any stock
splits, stock dividends, reorganizations, recapitalizations, stock
combinations and the like) for each of the ten (10) consecutive
prior Trading Days ending on the Trading Day immediately prior to
such date; provided that the Equity Conditions (as defined in the
April 2009 Notes) shall have been satisfied and the Common Stock
shall have been Tradable (as defined in the Notes) on each Trading
Day during the period beginning on the first day of such ten (10)
day period and ending on the date of the delivery of such shares of
Common Stock pursuant to such conversion.”
4.
Amendment to the July 2009 Purchase Agreement .
The Company and
the undersigned Holders representing the Purchasers (as defined in
the July 2009 Purchase Agreement) currently holding at least 66
2/3% of the principal amount of the July 2009 Notes currently
outstanding hereby amend Section
