Exhibit 10.4
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO 1. TO THE STOCK PURCHASE AGREEMENT (this
"Amendment") is made as of this 9th day of February, 2005 by and among
Neurologix, Inc., a Delaware corporation (the "Company"), and Copper Spire Fund
Portfolio, an entity organized under the laws of Ireland ("Buyer"). Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Stock Purchase Agreement (the "Agreement"), dated as of February 4, 2005,
by and among the Company, Merlin Biomed Long Term Appreciation Fund LP, a
Delaware limited partnership, and Merlin Biomed Offshore Master Fund LP, a
Cayman Islands limited partnership (the "Lead Purchasers").
WHEREAS, on February 4, 2005, the Company entered into the
Agreement with the Lead Purchasers;
WHEREAS, Section 9.1(b) of the Agreement provides that,
without the prior written consent of any Purchaser, on or before April 15,
2005, the Company may amend the Agreement to add Additional Purchasers of
Shares and Warrants and that any such amendment shall be effective upon the
execution of the Agreement and the other Transaction Documents by such
Additional Purchaser;
WHEREAS, the Agreement further provides that each Additional
Purchaser shall be deemed a Purchaser for all purposes under the Agreement and
the Transaction Documents and shall be subject to all of the obligations and
receive all of the rights and benefits hereunder and thereunder;
WHEREAS, Buyer desires to purchase from the Company 335,000
Shares and Warrants to purchase 83,750 Shares, pursuant to the terms of the
Agreement and the other Transaction Documents;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
contained in this Amendment, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Buyer hereby agree as follows:
1. Amendments.
(a) Pursuant to Section 9.1(b) of the Agreement, the parties hereto
hereby agree to amend the Agreement to add Buyer as an Additional Purchaser.
Buyer hereby agrees to become an Additional Purchaser under the Agreement and
to be bound thereby in all respects.
(b) Notwithstanding Section 1(a), Buyer hereby agrees that the
adjustment pursuant to Section 2.3 of the Agreement shall apply only to the
Lead Purchasers and the Company shall not be required to issue any shares of
Common Stock to Buyer pursuant to Section 2.3 of the Agreement.
(c) Exhibit A of the Agreement is hereby amended and supplemented to
include the information regarding Buyer set forth in Exhibit A to this
Amendment.
2. No Other Amendment. Except as expressly specified in Section 1
hereto, no provision of the Agreement is amended or modified by this Amendment.
3. Governing Law. This Amendment shall be governed by the governing
law provisions set forth in the Agreement.
4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized representatives as of the
day and year set forth below.
NEUROLOGIX, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Secretary and Treasurer
Dated as of: February 9, 2005
COPPER SPIRE FUND PORTFOLIO
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Portfolio Manager
Dated as of: February 9, 2005
Exhibit A
PURCHASER
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NAME AND ADDRESS NUMBER NUMBER OF
OF SHARES WARRANTS PURCHASE PRICE CLOSING DATE
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Copper Spire Fund Portfolio 335,000 83,750 435,500 February 9, 2005
c/o Copper Arch Capital, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Tel: 000 000-0000
Fax: 000 000-0000
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