EXHIBIT 10.1
SECOND AMENDMENT OF SECURITIES
PURCHASE AGREEMENT AND SERIES B UNIT PURCHASE
WARRANT
The Securities Purchase Agreement
dated April 29, 2008 between Cell Therapeutics, Inc. (the
“Company”) and BAM Opportunity Fund LP (the
“Holder”) and the Series B Unit Purchase Warrant dated
April 30, 2008, each as previously amended to date, are hereby
amended as follows, as of July 23, 2008.
WHEREAS, Section 1.1 of such
Securities Purchase Agreement (as amended to date) provides in
relevant part:
“ Series B Convertible
Notes ” means the 15% Series B Convertible Notes of the
Company to be issued under a Trust Indenture between the Company
and US Bank National Association as Trustee, and of like tenor as
the Convertible Notes except for the different issuance date, the
absence of an optional redemption right, a 3-year term, a 15%
annual interest rate, and a make-whole provision based on the
3-year term and the 15% annual interest rate.
WHEREAS, the Holder is not now
obligated to exercise any further amount of the Series B Unit
Purchase Warrant, but is willing to exercise $22,250,000 of the
remaining $44,500,000 of the Series B Unit Purchase Warrant
forthwith and the other $22,250,000 approximately four weeks after
the date of this Amendment—each upon, but only upon, the
terms provided for herein.
WHEREAS, the Company wishes to
induce such two exercises of the Series B Unit Purchase Warrant by
the Holder.
WHEREAS, the parties have satisfied
themselves that Rodman & Renshaw has agreed that its fee
for such two exercises of the Series B Unit Purchase Warrant by the
Holder will be limited to $300,000 per exercise.
WHEREAS, the parties wish to amend
the Series B Unit Purchase Warrant to increase the maximum number
of Units purchasable thereunder should the parties mutually agree
hereafter to such a further purchase.
NOW, THEREFORE, in consideration of
the foregoing, the parties agree as follows:
1. Notwithstanding anything in the
Securities Purchase Agreement and the Series B Unit Purchase
Warrants to the contrary, the Securities Purchase Agreement and the
Series B Unit Purchase Warrants are amended to provide that all
references therein to Series B Convertible Notes or 12.50% Series B
Convertible Notes [for avoidance of doubt: the parties confirm such
references were previously amended to mean 15% notes] shall,
instead of the meaning quoted in the Recitals above, have (as to
all such notes issued after the execution of this Amendment) the
following meaning:
“18.33% Series B Convertible
Senior Notes of the Company to be issued under a Trust Indenture
between the Company and US Bank National Association as Trustee,
and of like tenor as the Convertible Notes except for the different
issuance date, the absence of an optional redemption right, a
3-year term, a 18.33% annual interest rate, and a make-whole
provision based on the 3-year term and the 18.33% annual interest
rate.”
2. The Holder agrees to exercise the
Series B Unit Purchase Warrant to the extent of $22,250,000 of the
remaining $44,500,000 by no later than July 25, 2008, and to
the extent of an additional $22,250,000 by no later than
August 25, 2008. In order to induce these exercises, the
Company shall (in addition to providing, upon each such respective
exercise, the 18.33% Convertible Senior Notes due 2011 and
14,082,278 Series A Warrants [50% warrant coverage] as contemplated
by the Series B Unit Purchase Warrant, except that such Series A
Warrants shall have an exercise price of $0.79 per share), amend
the 17,468,354 Series A Warrants (the “Amended
Warrants”) initially associated with the $27,600,000
principal amount of 13.5% Convertible Senior Notes due 2014 of the
Company (“13.5% Notes”) which has been, before the date
of this Amendment, converted by the Holder into Common Stock
pursuant to the terms of such 13.5% Notes, so that such Amended
Warrants shal
