AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") is made effective as of December 14,
2005, by and between Samaritan Pharmaceuticals, Inc., a Nevada corporation (the
"Company") and Fusion Capital Fund II, LLC, an Illinois limited liability
company (the "Buyer" and together with the Company, the "Parties").
WITNESSTH:
WHEREAS, the Company and the Buyer have entered into that certain
Common Stock Purchase Agreement, dated as of May 12, 2005 (the "Agreement"); and
WHEREAS, the Parties desire to amend the terms of the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants contained herein and in the Agreement, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties hereto agree
as follows:
1. The Agreement is hereby amended by deleting Section 11 therein entitled
"Miscellaneous" in its entirety and by inserting in lieu thereof the following:
"11. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury Trial. The corporate
laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its
shareholders. All other questions concerning the
construction, validity, enforcement and interpretation of
this Agreement and the other Transaction Documents shall be
governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Illinois or
any other jurisdictions) that would cause the application of
the laws of any jurisdictions other than the State of
Illinois. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts
sitting in the City of Chicago, for the adjudication of
any dispute hereunder or under the other Transaction
Documents or in connection herewith or therewith, or with
any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process
being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which 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; provided that a facsimile signature shall be
considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
(c) Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
(e) Entire Agreement. With the exception of the Mutual
Nondisclosure Agreement between the parties dated as of April
1, 2003, this Agreement supersedes all other prior oral or
written agreements between the Buyer, the Company, their
affiliates and persons acting on their behalf with respect to
the matters discussed herein, and this Agreement, the other
Transaction Documents and the instruments referenced herein
contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company
nor the Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters.
(f) Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the
terms of this Agreement must be in writing and will be deemed
to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending
party); or (iii) one Trading Day after deposit with a
nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall
be:
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If to the Company: Samaritan Pharmaceuticals, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx, CEO
With a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
Miami Center, 20th Floor,
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 305-358-7095
Attention: Xxxxxxx Xxxxxx, Esq.
If to the Buyer: Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxx
If to the Transfer Agent: Securities Transfer Corporation
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxx
or at such other address and/or facsimile number and/or to
the attention of such other person as the recipient party has
specified by written notice given to each other party three
(3) Trading Days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's
facsimile machine containing the time, date, and recipient
facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors and assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the
prior written consent of the Buyer, including by merger or
consolidation. The Buyer may not assign its rights or
obligations under this Agreement.
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(h) No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other
person.
(i) Publicity. The Buyer shall have the right to approve before
issuance any press release, SEC filing or any other public
disclosure made by or on behalf of the Company whatsoever
with respect to, in any manner, the Buyer, its purchases
hereunder or any aspect of this Agreement or the transactions
contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of the Buyer,
to make any press release or other public disclosure
(including any filings with the SEC) with respect to such
transactions as is required by applicable law and
regulations; provided however, the Company and its counsel
must consult with the Buyer in connection with any such press
release or other public disclosure at least two (2) Trading
Days prior to its release. The Buyer must be provided with
a copy thereof at least two (2) Trading Days prior to any
release or use by the Company thereof. The Company agrees
and acknowledges that its failure to fully comply with this
provision constitutes a material adverse effect on its
ability to perform its obligations under this Agreement.
(j) Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party
may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(k) Termination. This Agreement may be terminated only as
follows:
(i) By the Buyer any time an Event of Default exists without any
liability or payment to the Company. However, if pursuant
to or within the meaning of any Bankruptcy Law, the
Company commences a voluntary case or any Person commences
a proceeding against the Company, a Custodian is appointed
for the Company or for all or substantially all of its
property, or the Company makes a general assignment for
the benefit of its creditors, (any of which would be an
Event of Default as described in Sections 9(f), 9(g) and
9(h) hereof) this Agreement shall automatically terminate
without any liability or payment to the Company without
further action or notice by any Person. No such termination
of this Agreement under this Section 11(k)(i) shall affect
the Company's or the Buyer's obligations under this
Agreement with respect to pending purchases and the
Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this
Agreement.
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(ii) In the event that the Commencement shall not have occurred,
the Company shall have the option to terminate this Agreement
for any reason or for no reason without liability of any
party to any other party.
(iii) In the event that the Commencement shall not have occurred on
or before June 30, 2005, due to the failure to satisfy the
conditions set forth in Sections 6 and 7 above with respect
to the Commencement, the nonbreaching party shall have the
option to terminate this Agreement at the close of business
on such date or thereafter without liability of any party to
any other party.
(iv) If by the Maturity Date (including any extension thereof by
the Company pursuant to Section 10(g) hereof), for any reason
or for no reason the full Available Amount under this
Agreement has not been purchased as provided for in Section 1
of this Agreement, by the Buyer without any liability or
payment to the Company.
(v) At any time after the Commencement Date, the Company shall
have the option to terminate this Agreement for any reason or
for no reason by delivering notice (a "Company Termination
Notice") to the Buyer electing to terminate this Agreement
without any liability or payment to the Buyer. The Company
Termination Notice shall not be effective until one (1)
Trading Day after it has been received by the Buyer.
(vi) This Agreement shall automatically terminate on the date
that the Company sells and the Buyer purchases the full
Available Amount as provided herein, without any action or
notice on the part of any party. Except as set forth in
Sections 11(k)(i) (in respect of an Event of Default under
Sections 9(f), 9(g) and 9(h)) and 11(k)(vi), any termination
of this Agreement pursuant to this Section 11(k) shall be
effected by written notice from the Company to the Buyer, or
the Buyer to the Company, as the case may be, setting forth
the basis for the termination hereof. The representations
and warranties of the Company and the Buyer contained in
Sections 2 and 3 hereof, the indemnification provisions
set forth in Section 8 hereof and the agreements and
covenants set forth in Section 11, shall survive the
Commencement and any termination of this Agreement. No
termination of this Agreement shall affect the Company's or
the Buyer's rights or obligations (i) under the
Registration Rights Agreement which shall survive any such
termination or (ii) under this Agreement with respect to
pending purchases and the Company and the Buyer shall
complete their respective obligations with respect to any
pending purchases under this Agreement.
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(l) No Financial Advisor, Placement Agent, Broker or Finder.
The Company represents and warrants to the Buyer that it has
not engaged any financial advisor, placement agent,
broker or finder in connection with the transactions
contemplated hereby. The Buyer represents and warrants
to the Company that it has not engaged any financial
advisor, placement agent, broker or finder in connection
with the transactions contemplated hereby. The Company
shall be responsible for the payment of any fees or
commissions, if any, of any financial advisor, placement
agent, broker or finder relating to or arising out of the
transactions contemplated hereby. The Company shall pay,
and hold the Buyer harmless against, any liability, loss or
expense (including, without limitation, attorneys' fees and
out of pocket expenses) arising in connection with any such
claim.
(m) No Strict Construction. The language used in this Agreement
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.
(n) Remedies, Other Obligations, Breaches and Injunctive
Relief. The Buyer's remedies provided in this Agreement
shall be cumulative and in addition to all other remedies
available to the Buyer under this Agreement, at law or in
equity (including a decree of specific performance and/or
other injunctive relief), no remedy of the Buyer contained
herein shall be deemed a waiver of compliance with the
provisions giving rise to such remedy and nothing herein
shall limit the Buyer's right to pursue actual damages for
any failure by the Company to comply with the terms of this
Agreement. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to
the Buyer and that the remedy at law for any such breach may
be inadequate. The Company therefore agrees that, in the
event of any such breach or threatened breach, the Buyer
shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without
the necessity of showing economic loss and without any
bond or other security being required.
(o) Enforcement Costs. If: (i) this Agreement is placed by the
Buyer in the hands of an attorney for enforcement or is
enforced by the Buyer through any legal proceeding; or (ii)
an attorney is retained to represent the Buyer in any
bankruptcy, reorganization, receivership or other proceedings
affecting creditors' rights and involving a claim under this
Agreement; or (iii) an attorney is retained to represent the
Buyer in any other proceedings whatsoever in connection with
this Agreement, then the Company shall pay to the Buyer, as
incurred by the Buyer, all reasonable costs and expenses
including attorneys' fees incurred in connection therewith,
in addition to all other amounts due hereunder.
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(p) Failure or Indulgence Not Waiver. No failure or delay in the
exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or
privilege."
2. The Agreement shall further be amended wherever appropriate
to reflect the changes indicated above.
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IN WITNESS WHEREOF the Parties have hereunto set their hands and seals
the day and year set above set forth.
SAMARITAN PHARMACEUTICALS, INC.
/s/ Xx. Xxxxx Xxxxxxx
--------------------------------
By: Xx. Xxxxx Xxxxxxx
Its: Chief Executive Officer
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
/s/ Xx. Xxxxx Xxxxxxx
--------------------------------
By: Xxxxxx X. Xxxxxx
Title: President
