AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This Amendment No. 1
(this “Amendment”) to the Securities Purchase Agreement
dated June 8, 2009 (individually the SPA and with this Amendment
the “Agreement” ) is dated as of September 1,
2009, by and between Oxygen Biotherapeutics, Inc., a Delaware
corporation (the “Company” ), and JP SPC 1
Vatea, Segregated Portfolio (formerly Vatea Fund, Segregated
Portfolio), a Cayman Islands company (the
“Investor” ). All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to such
terms in the SPA.
WHEREAS, the SPA
provides that the Investor will make additional investments in the
Company through the purchase of Common Stock, subject to the
Company achieving Milestones listed in Appendix A to the SPA.
WHEREAS, the parties
have agreed on certain modifications to the Milestones and other
terms of the SPA, and wish to enter into this Amendment to
memorialize the changes and the Agreement between the parties.
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the
Investor agree as follows:
1. Section 2.2(b) of
the SPA is deleted and the following new Section 2.2(b) inserted in
lieu thereof:
(b)
Except as otherwise
specifically provided for in Appendix A, on the 20th Business Day
following the date on which an Installment Notice is given to the
Investor, a closing (a “ Subsequent Closing ”)
shall take place at the offices of Parsons, Behle & Latimer,
201 South Main Street, Suite 1800, Salt Lake City, Utah 84111 (i)
at 1:00 p.m. local time on that date, or (ii) at such other time
and place or on such date as the Investor and the Company may agree
upon (a “ Subsequent Closing Date ”), and at
each such Subsequent Closing the Company shall deliver or cause to
be delivered to the Investor the Installment Shares, and the
Investor shall deliver or cause to be delivered to the Company by
wire transfer to an account designated in writing by the Company
prior to each Subsequent Closing the Installment Payment.
2. Pursuant to
Section 4.10 of the SPA the Company is required to take all action
required by its certificate of incorporation, bylaws, and
applicable law to increase the number of persons then comprising
the board of directors by one and electing the Investor Nominee to
the vacancy thereby created following the Subsequent Closing Date
where the sum of the payment paid for Shares at that closing and
the payments for all Shares sold in Subsequent Closings prior to
that closing equals or exceeds US$5,000,000. On August 24, 2009,
the Company increased the number of persons comprising the board of
directors by one and elected Gregory Pepin to fill the director
position created thereby. The Company agrees that the condition
precedent to the election of the Investor Nominee, that there be an
investment of US$5,000,000 in one or more Subsequent Closings, is
waived, and the Investor agrees that Gregory Pepin is the Investor
Nominee for purposes of Section 4.10 and that the obligations of
the Company under Section 4.10 have been fulfilled.
3. Appendix A to the
SPA deleted and the new Appendix A attached to this Amendment
inserted in lieu thereof.
4. Except as
otherwise specifically provided for in his Amendment, all of the
terms and provisions of the SPA remain in full force and effect.
This Amendment is one of the Transaction Documents and the
Transaction Documents, together with the appendices and schedules
thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior
agreements, understandings, discussions and representations, oral
or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, appendices, and
schedules.
5. This Amendment
may be executed in two or more counterparts, all of which when
taken together with the Transaction Documents shall be considered
one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered
by facsimile transmission or by image file attached to an email,
such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile signature page
or image file of the signature page were an original thereof.
IN WITNESS WHEREOF,
the parties hereto have caused this Amendment No. 1 to the SPA to
be duly executed by their respecti
