AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT, SENIOR SECURED CONVERTIBLE NOTES, WARRANTS AND SECURITY AGREEMENT
AMENDMENT
NO. 2 TO SECURITIES PURCHASE AGREEMENT, SENIOR
SECURED
CONVERTIBLE NOTES, WARRANTS AND SECURITY AGREEMENT
This
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT, SENIOR SECURED CONVERTIBLE
NOTES, WARRANTS AND SECURITY AGREEMENT (this “Amendment”) is made and entered
into as of September 19, 2008, by and among Biophan Technologies, Inc., a Nevada
corporation (the “Biophan”), and the purchasers identified on the signature
pages hereto (each, a “Purchaser” and, collectively, the
“Purchasers”).
RECITALS
Biophan
and the Purchasers are parties to a Securities Purchase Agreement, dated as
of
October 11, 2006 (the “Purchase Agreement”), pursuant to which Biophan issued
and sold to the Purchasers an aggregate of $7,250,000 of Notes and certain
Warrants (each as defined in the Purchase Agreement). Capitalized terms used
and
not defined in this Amendment shall have the respective meanings set forth
in
the Purchase Agreement or in the Forbearance Agreement, dated as of February
16,
2007 with the holders of the Notes (the “Forbearance Agreement”).
In
connection with the Purchase Agreement, Biophan and the Purchasers entered
into
a Security Agreement, dated as of October 11, 2006 (the “Security Agreement”),
pursuant to which Biophan agreed to pledge and grant a security interest in
the
Collateral (as defined in the Security Agreement).
On
October 11, 2007, Biophan and the Purchasers entered into an AMENDMENT NO.
1 to
SECURITIES PURCHASE AGREEMENT, SENIOR SECURED CONVERTIBLE NOTES, WARRANTS AND
SECURITY AGREEMENT (“Amendment No. 1”).
Whereas,
Biophan and the Purchasers have agreed that it is their mutual best interests
for Biophan to repay the Notes and, to accomplish the same, now wish to further
modify certain of the terms of the Purchase Agreement, Notes, Warrants and
the
Security Agreement.
NOW,
THEREFORE, in consideration of the foregoing Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Biophan and each Purchaser, severally and not jointly, agree
as
follows:
1.
Amendments
to Purchase Agreement and the Notes.
(a) Each
Purchaser may elect, by written notice to such effect delivered to Biophan
no
later than September 19, 2008 (the “Repayment Election Notice”), to accept, in
repayment of its Note in full and satisfaction and cancellation of all of
Biophan’s obligations under the Transaction Documents (other than the Warrants
and the Fee Warrants (as defined in the Forbearance Agreement) if the Purchaser
elects to retain the same as hereinafter provided, or including the Warrants
and
the Fee Warrants if the same are surrendered as hereinafter provided), either
(i) to surrender its Warrants and Fee Warrants to Biophan for cancellation,
and
in consideration receive the “Cash Payment”, the “Repayment Shares” and the
“Premium Shares” allocated to such Purchaser under the columns on the attached
table that are designated as “Option A - Premium Shares and Cancellation of
Warrants”, or (ii) to retain its Warrants and Fee Warrants on their current
terms without any modification, amendment or other adjustment solely by reason
of this Amendment, and receive the “Cash Payment” and the “Repayment Shares”
allocated to such Purchaser under the columns on the attached table that are
designated as “Option B - Warrants Remain in Place”.
(b) Any
Purchaser who has executed and delivered this Amendment, who fails to deliver
timely to Biophan a Repayment Election Notice, shall be deemed to have given
Biophan notice of its election to receive the consideration set forth in (a)(i)
above, and to surrender to Biophan on or before September 25, 2008 its Warrants
for cancelation.
2.
Continued
Validity of Transaction Documents under Purchase Agreements.
The
parties hereto agree that (x) this Amendment shall be effective only if executed
and delivered by all of the Purchasers, and (y) the Purchase Agreement and
the
Transaction Documents entered into in connection therewith (as amended by this
Amendment), and the Forbearance Agreement, remain in full force and effect,
modified to the extent and only to the extent necessary to give effect to this
Amendment and the transactions herein contemplated.
3.
Entire
Agreement.
This
Amendment and the Transaction Documents and the Forbearance Agreement, together
with the exhibits and schedules thereto, contain the entire understanding of
the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits
and
schedules.
4.
Equal
Treatment of Purchasers.
No
consideration shall be offered or paid to any person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
(or
the Forbearance Agreement) unless the same consideration is also offered to
all
of the parties to the Transaction Documents (and the Forbearance Agreement).
For
clarification purposes, this provision constitutes a separate right granted
to
each Purchaser by Biophan and negotiated separately by each Purchaser, and
is
intended to treat Biophan and the Purchasers as a class and shall not in any
way
be construed as the Purchasers acting in concert or as a group with respect
to
the purchase, disposition or voting of Securities or otherwise.
5.
Public
Announcement.
Biophan
shall, by 8:30 a.m. Eastern time on September 24, 2008, issue a press release
disclosing the material terms of the transactions contemplated hereby and timely
file a Current Report on Form 8-K (the “8-K Filing”), attaching such press
release and this Amendment. From and after the filing of the 8-K Filing with
the
Commission, the Company represents that the Purchasers shall not be in
possession of any material, nonpublic information received from the Company,
any
of its Subsidiaries or any of its respective officers, directors, employees
or
agents that is not disclosed in the 8-K Filing. Biophan shall not, and shall
cause each of its Subsidiaries and its and each of their respective officers,
directors, employees and agents, not to, provide any Purchaser with any
material, nonpublic information regarding the Company or any of its Subsidiaries
from and after the filing of the 8-K Filing with the Commission without the
express written consent of such Purchaser.
6.
Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
as specified in the Purchase Agreement. The address for such notices and
communications shall be as set forth on the signature pages attached to the
Purchase Agreement.
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7.
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Miscellaneous.
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7.1.
Amendments;
Waivers.
No
provision of this Amendment may be waived or amended except in a written
instrument signed, in the case of an amendment, by Biophan and each Purchaser
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Amendment shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
7.2.
Amendment
Controls.
If any
topic is addressed both in the Purchase Agreement (or any document related
thereto) and in this Amendment, this Amendment shall control.
7.3
Construction.
The
headings herein are for convenience only, do not constitute a part of this
Amendment and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Amendment will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
7.4
Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Amendment shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. The parties agree that Section 7.9
of
the Purchase Agreement shall apply to this Amendment as if set forth in its
entirety herein.
7.5
Survival.
The
representations and warranties contained herein shall survive for the applicable
statue of limitations.
7.6
Execution.
This
Amendment may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same document 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.
7.7
Severability.
If any
provision of this Amendment is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Amendment shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefore, and upon so agreeing, shall incorporate such
substitute provision in this Amendment.
7.8
Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser hereunder are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in
any
way for the performance of the obligations of any other Purchaser. Nothing
contained herein, and no action taken by any Purchaser pursuant hereto, shall
be
deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated hereby. Each Purchaser shall be entitled to
independently protect and enforce its rights, including, without limitation,
the
rights arising out of this Amendment and it shall not be necessary for any
other
Purchaser to be joined as an additional party in any proceeding for such
purpose. The Purchasers have not relied upon the same legal counsel in their
review and negotiation of this Amendment. Biophan has elected to provide all
Purchasers with the same terms and form of Amendment for the convenience of
Biophan and not because it was required or requested to do so by the Purchasers.
Each Purchaser represents that it has been represented by its own separate
legal
counsel in its review and negotiations of this Amendment.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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BIOPHAN
TECHNOLOGIES, INC.
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASERS FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Iroquois
Master Fund, Ltd.
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxxx Xxxxxxxxx
Name
of
Authorized Signatory:
Xxxxxx Xxxxxxxxx
Title
of
Authorized Signatory: Authorized
Signatory
Email
Address of Authorized Entity
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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Option
B - Warrants remain in place
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JS
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IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
CAMOFI
Master Fund LLC
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxxxx Xxxxxxx
Title
of
Authorized Signatory: CFO
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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RE
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Option
B - Warrants remain in place
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Name
of
Investing Entity:
Roswell
Capital Partners/Bridge Pointe Master Fund Ltd
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxx X. Xxxxxx
Name
of
Authorized Signatory:
Xxxx
X. Xxxxxx
Title
of
Authorized Signatory: Director
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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Option
B - Warrants remain in place
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ES
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IN
WITNESS
WHEREOF, the undersigned have caused this Amendment to be duly executed by
their
respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Cranshire Capital LP
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxx X. Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: COO
- Downsview Capital, Inc., The General Partner
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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Option
B - Warrants remain in place
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KG
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IN
WITNESS
WHEREOF, the undersigned have caused this Amendment to be duly executed by
their
respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity: Highbridge
International, LLC
By:
Highbridge Capital management, LLC, its Trading Manager
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxx X. Chill
Name
of
Authorized Signatory:
Xxxx
X. Chill
Title
of
Authorized Signatory: Managing
Director
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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A.C.
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Option
B - Warrants remain in place
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IN
WITNESS
WHEREOF, the undersigned have caused this Amendment to be duly executed by
their
respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Xxxxxxxx
Investment Master Fund, Ltd.
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxxxx Xxxxxxxx
Name
of
Authorized Signatory:
Xxxxxxx Xxxxxxxx
Title of Authorized Signatory: Managing Director
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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Option
B - Warrants remain in place
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MC
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IN
WITNESS
WHEREOF, the undersigned have caused this Amendment to be duly executed by
their
respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Harborview Master Fund, L.P.
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxx Xxxxxx
Name
of
Authorized Signatory:
Xxxxx
Xxxxxx
Navigator
Management Ltd.,
Authorized Signatory
Title
of
Authorized Signatory:
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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Option
B - Warrants remain in place
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SP
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IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Crescent
International Ltd
Signature
of Authorized Signatory of Investing Entity: /s/
Maxi Brezzi
Name
of
Authorized Signatory:
Maxi
Brezzi
Title
of
Authorized Signatory: Authorized
Signatory
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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MB
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Option
B - Warrants remain in place
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IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Investing Entity:
Atoll
Asset Management, LLC/Truk Opportunity Fund, LLC
Signature
of Authorized Signatory of Investing Entity: /s/
Xxxxxxxx Xxxx
Name
of
Authorized Signatory:
Xxxxxxxx Xxxx
Title
of
Authorized Signatory: Vice
President
Email
Address of Authorized Entity:
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Initial
Below to Indicate Choice
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Option
A - Premium shares and cancellation of warrants
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MF
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Option
B - Warrants remain in place
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