EXECUTION FOURTH AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT and SECURED PROMISSORY NOTES
EXECUTION
FOURTH AMENDMENT TO
NOTE AND WARRANT PURCHASE AGREEMENT
and SECURED PROMISSORY NOTES
This Fourth Amendment (as amended, restated, supplemented or otherwise modified from time to time, the “Fourth Amendment”) dated as of October 4, 2012, among Marina Biotech, Inc., a Delaware corporation (the “Company”), MDRNA Research, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Research”), and Cequent Pharmaceuticals, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Cequent” and, together with the Company and Research, the “Companies”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”), amends (i) that certain Note and Warrant Purchase Agreement (as amended from time to time, the “Purchase Agreement”), dated as of February 10, 2012, among the Companies and the Purchasers and (ii) the Secured Promissory Notes (the “Notes”) issued to the Purchasers pursuant thereto. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.
Section 1. Amendment of Third Amendment; Issuance of Warrants.
(a) By executing below, the Companies and the Purchasers hereby agree to amend Section 1 of that certain Third Amendment to the Purchase Agreement: (i) to remove the following language from such Section 1 in its entirety: “: (i) payment to the Purchasers (on a pro rata basis) of all sums received from the sale of surplus equipment by the Companies (net of sales expenses), such amounts to be applied promptly following sale first to interest accrued on the Notes and not yet paid and then to principal outstanding thereon; and (ii)”; and (ii) to replace the phrase “clause (ii)” in the final parenthetical of the first sentence of such Section 1 with the word “condition”.
(b) As consideration for this Fourth Amendment, the Company shall issue to the Purchasers (on a pro rata basis), promptly upon the execution of this Fourth Amendment, warrants to purchase up to an aggregate of 1,035,715 shares of Common Stock (the “Warrants”). The Warrants will have an initial exercise price of $0.28 per share, which is subject to adjustment (including as a result of subsequent financings completed on or prior to June 30, 2014), will be exercisable for a period of five years beginning six months and one day following the issuance of the Warrants, and otherwise have substantially the same terms and conditions as the warrants that were issued to the Purchasers upon the closing of the Purchase Agreement.
1 |
(a) The definition of “Transaction Documents” is hereby amended to add this “Fourth Amendment” as a Transaction Document.
(b) The definition of “Warrants” is hereby amended to include the Warrants that may be issued pursuant to this Fourth Amendment.
3.3 Execution. This Fourth Amendment may be executed in two or more counterparts, all of which when taken together 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, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
3.5 Choice of Law. This Fourth 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 laws thereof.
2 |
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
3 |
MARINA BIOTECH, INC. | ||
By: | /s/ J. Xxxxxxx Xxxxxx | |
Name: | J. Xxxxxxx Xxxxxx | |
Title: | President and Chief Executive Officer | |
MDRNA RESEARCH, INC. | ||
By: | /s/ J. Xxxxxxx Xxxxxx | |
Name: | J. Xxxxxxx Xxxxxx | |
Title: | President | |
CEQUENT PHARMACEUTICALS, INC. | ||
By: | /s/ J. Xxxxxxx Xxxxxx | |
Name: | J. Xxxxxxx Xxxxxx | |
Title: | President |
[Remainder of page intentionally left blank; signature pages for Purchasers follows]
4 |
[PURCHASER SIGNATURE PAGES TO FOURTH AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT and SECURED PROMISSORY NOTES]
IN WITNESS WHEREOF, the undersigned have caused this Fourth Amendment to Note and Warrant Purchase Agreement and Secured Promissory Notes to be duly executed by their respective authorized signatories as of the date first indicated above.
GENESIS CAPITAL MANAGEMENT, LLC | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Managing Director |
5 |
[PURCHASER SIGNATURE PAGES TO FOURTH AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT and SECURED PROMISSORY NOTES]
IN WITNESS WHEREOF, the undersigned have caused this Fourth Amendment to Note and Warrant Purchase Agreement and Secured Promissory Notes to be duly executed by their respective authorized signatories as of the date first indicated above.
PEAK CAPITAL ADVISORY LIMITED | ||
By: | /s/ Feng Bai Ye | |
Name: | Feng Bai Ye | |
Title: | Managing Director |
6 |