|
AMENDMENT
TO THE
SECURITIES PURCHASE AGREEMENT
This
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT (the
“
Amendment ”)
dated as of April 9, 2008, is entered into by and between Novelos
Therapeutics, Inc., a Delaware Corporation (the “
Company ”)
and the investors listed on the signature pages hereto (each an
“
Investor ”
and collectively the “
Investors ”).
WHEREAS,
the Company and the Investors have entered into that certain
Securities Purchase Agreement dated as of March 26, 2008 (the
“
Purchase Agreement ”);
WHEREAS,
pursuant to Section 11.6 of the Purchase Agreement, the
Purchase Agreement may be amended with the written consent of
the Company and the Requisite Holders (as defined in the
Purchase Agreement);
WHEREAS,
the Company and the Investors, which Investors include the
Requisite Holders, desire to amend the Purchase Agreement as
hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as
follows:
1.
Amendment .
The Purchase Agreement is hereby amended as follows:
(a)
Paragraph
A of the Recitals is hereby deleted in its entirety and
replaced with the following:
“A.
The
Company desires, pursuant to this Agreement, to raise up to
the Investment Amount (as defined below) through the issuance
and sale of the following to the Investors (the “
Private Placement ”):
(i) up to 113.5 shares of a newly created series of the
Company’s Preferred Stock, designated “Series D
Convertible Preferred Stock”, par value $0.00001 per share
(the “
Preferred Stock ”),
which Preferred Stock shall have the rights, preferences and
privileges set forth in the Certificate of Designations,
Preferences and Rights, in the form of
Exhibit A annexed
hereto and made a part hereof (the “
Certificate of Designations ”),
and each share of Preferred Stock shall have a stated value of
$50,000 and shall initially be convertible into shares of the
Company's Common Stock, par value $0.00001 per share (the
“
Common Stock ”),
at a price of $0.65 per share (the “
Conversion Price ”),
for an aggregate of 8,730,755 shares of Common Stock; and (ii)
warrants to acquire up to 4,365,381 shares of Common Stock, equal
to 50% of the number of shares of Common Stock underlying the
Preferred Stock on the date of issue, with an exercise price of
$0.65 per share, in the form of
Exhibit B annexed
hereto and made a part hereof (the “
Warrants ”);”
(b)
The
definition of “Investment Amount” in Section 1 is
hereby deleted in its entirety and replaced with the
following:
“
Investment Amount ”
means an amount equal to $5,675,000
(c)
The
definition of “Orbimed Entities” in Section 1 is
hereby deleted in its entirety and replaced with the
following:
“
Orbimed Entities means,
collectively, Caduceus Master Fund Limited, a Bermuda corporation
(“
Caduceus Master ”),
Caduceus Capital II, L.P., a Delaware limited partnership
(“
Caduceus Capital ”),
Summer
Street Life Sciences Hedge Fund Investors LLC, a Delaware limited
liability company (“
Summer Street ”)
,
UBS Eucalyptus Fund, L.L.C., a Delaware registered investment
company (“
UBS Eucalyptus ”)
and PW Eucalyptus Fund, Ltd., a Cayman Islands investment company
(“
PW Eucalyptus ”)
(d)
The
definition of “Requisite Holders” in Section 1 is
hereby deleted in its entirety and replaced with the
following:
“
Requisite Holders ”
shall mean the holders of at least a majority of the then
outstanding shares of Preferred Stock which majority must include
(i) the Xmark Entities, provided such Xmark Entities have purchased
an aggregate of $1,480,000 of Preferred Stock pursuant to this
Agreement and hold at least one-third of the Preferred Stock issued
to the Xmark Entities at Closing as of the date of determination
and (ii) the OrbiMed Entities, provided such OrbiMed Entities have
purchased an aggregate of $1,813,750 of Preferred Stock pursuant to
this Agreement and hold at least one-third of the Preferred Stock
issued to the OrbiMed Entities at Closing as of the date of
determination (appropriately adjusted for any stock dividend, stock
split, reverse stock split, reclassification, stock combination or
other recapitalization occurring after the date
hereof).
(e)
The
definition of “Xmark Entities” in Section 1 is
hereby deleted in its entirety and replaced with the
following:
Xmark Entities ”
means, collectively, Xmark Opportunity Fund, L.P., a Delaware
limited partnership (“
Xmark LP ”),
Xmark Opportunity Fund, Ltd., a Cayman Islands exempted company
(“
Xmark Ltd ”)
and Xmark JV Investment Partners, LLC (“
Xmark LLC ”),
a Delaware limited liability company.
(f)
Section
7 is hereby amended by adding a new Section 7.4 as
follows:
7.4
Series B Dividend .
The
Company and each of the Series B Investors hereby agree that the
dividend accrued on each share of Series B Preferred Stock from
April 1, 2008 through the day immediately preceding the Exchange
shall be paid, out of legally available funds, on June 30,
2008.
(g)
Schedule
I attached to the Purchase Agreement
is hereby deleted in its entirety and replaced with Schedule I
attached hereto .
(h)
Schedule
5.3(b) attached to the Purchase Agreement is hereby deleted in
its entirety and replaced with Schedule 5.3(b) attached
hereto
(i)
Schedule
5.19 attached to the Purchase Agreement is hereby deleted in
its entirety and replaced with Schedule 5.19 attached
hereto.
2.
Applicable Law .
This Amendment shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of New York,
without regard to its principles of conflicts of laws.
3.
Effect on Purchase Agreement .
Except as modified hereby, the Purchase Agreement shall remain in
full force and effect.
4.
Counterparts .
This Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall be
deemed to constitute one instrument.
Amendment to the Securities Purchase
Agreement
Company Signature Page
IN
WITNESS WHEREOF the undersigned have executed this Amendment
to the Securities Purchase Agreement or caused its duly
authorized officers to execute this Amendment to the
Securities Purchase Agreement as of the date first above
written.
| |
NOVELOS THERAPEUTICS, INC.
|
| |
|
| |
|
| |
By:
|
/s/
Harry S. Palmin
|
| |
Name: Harry
S. Palmin
|
| |
Title: President
and CEO
|
Amendment to the Securities Purchase
Agreement
Investor Signature Page
IN
WITNESS WHEREOF, the undersigned has executed this Amendment
to the Securities Purchase Agreement or caused its duly
authorized officers to execute this Amendment to the
Securities Purchase Agreement as of the date first above
written.
|
Xmark
Opportunity Fund, Ltd.
|
|
|
Name
of entity
|
|
| |
|
|
By:
|
Xmark
Opportunity Manager, LLC,
|
|
|
its
Investment Manager
|
|
| |
|
|
By:
|
Xmark
Opportunity Partners, LLC,
|
|
|
its
Sole Member
|
|
| |
|
|
By:
|
Xmark
Capital Partners, LLC,
|
|
|
its
Managing Member
|
|
| |
|
|
By:
|
/s/
Mitchell D. Kaye
|
|
| |
|
|
Name:
Mitchell D. Kaye
|
|
|
Title:
Chief Executive Officer
|
|
| |
|
|
Cayman
Islands
|
|
|
Jurisdiction
of organization of entity
|
|
| |
|
|
Address:
|
|
| |
|
|
90
Grove Street
|
|
|
Ridgefield,
CT 06877
|
|
Aggregate
dollar amount of Securities committed to be purchased pursuant
to the terms of the Agreement, as amended:
Amendment to Securities Purchase Agreement
Investor Signature Page
IN
WITNESS WHEREOF, the undersigned has executed this Amendment
to the Securities Purchase Agreement or caused its duly
authorized officers to execute this Amendment to the
Securities Purchase Agreement as of the date first above
written.
|
Xmark
Opportunity Fund, L.P.
|
|
|
Name
of entity
|
|
| |
|
|
By:
|
Xmark
Opportunity GP, LLC
|
|
|
its
General Partner
|
|
| |
|
|
By:
|
Xmark
Opportunity Partners, LLC,
|
|
|
its
Sole Member
|
|
| |
|
|
By:
|
Xmark
Capital Partners, LLC,
|
|
|
its
Managing Member
|
|
| |
|
| |
|
|
By:
|
/s/
Mitchell D. Kaye
|
|
|
Name:
Mitchell D. Kaye
|
|
|
Title:
Chief Executive Officer
|
|
| |
|
|
Delaware
|
|
|
Jurisdiction
of organization of entity
|
|
| |
|
|
Address:
|
|
| |
|
|
90
Grove Street
|
|
|
Ridgefield,
CT 06877
|
|
Aggregate
dollar amount of Securities committed to be purchased pursuant
to th
|
