AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
Exhibit
10.3
AMENDMENT
NO. 1 TO SECURITIES PURCHASE AGREEMENT
This
Amendment No. 1 to Securities Purchase Agreement, dated as of September 16, 2009
(this “Amendment”), is made
by and between Rexahn Pharmaceuticals, Inc., a corporation organized and
existing under the laws of Delaware (the “Company”), and Teva
Pharmaceutical Industries Limited, a limited liability company organized and
existing under the laws of Israel (the “Purchaser”). Any
capitalized term not defined herein shall have the meaning for such term
specified in the Securities Purchase Agreement (as defined below).
WHEREAS, the Company and the
Purchaser entered into a Securities Purchase Agreement, dated as of June 26,
2009 (the “Securities
Purchase Agreement”); and
WHEREAS, the Purchaser and the
Company wish to amend the Securities Purchase Agreement to restructure the
consideration payable by the Purchaser at the Initial Closing and the Second
Closing and to revise the anticipated timing of the Initial Closing, as set
forth herein.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Purchaser agree as follows:
1.
Section 1.8 of the Securities Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
“1.8 Initial Aggregate Purchase
Price” means $3,500,000.”
2.
Section 2.1(c)(ii)(A) of the Securities Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
“(A) the
Initial Aggregate Purchase Price of $3,500,000 by wire transfer of immediately
available funds to the account of the Company;”
3.
Section 2.1(d)(i)(E) of the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
“(E) Pre-Clinical Development
Requirements; R&D Program; R&D Budget. The Purchaser
and the Company shall have agreed upon (1) a set of requirements to apply to the
pre-clinical development of RX-3117 (the “Pre-Clinical Development
Requirements”); (2) the R&D Program; and (3) a budget (the “R&D Budget”) to
govern the expenditure of the $3,500,000 of the Initial Aggregate Purchase Price
to be allocated to the R&D Program as provided in Section
2.3(a);”
4.
Section 2.2(a) of the Securities Purchase Agreement is hereby
deleted in its entirety and replaced with the following:
“(a) No
sooner than 60 days prior to the scheduled exhaustion (pursuant to the R&D
Budget) of the $2,000,000 of the Initial Aggregate Purchase Price allocated to
the R&D Program, or at such other time as may be mutually agreed upon by the
Company and the Purchaser, the Company shall deliver to the Purchaser an updated
R&D Budget (the “Updated R&D
Budget”), which Updated R&D Budget, together with an expenditure
schedule and payment mechanism for the remaining funding of the R&D Program,
shall be subject to the written approval of the Purchaser.”
5.
Section 2.2(f)(i) of the Securities Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
“(i) The
Company shall sell and issue to the Purchaser, and the Purchaser shall purchase
from the Company, the Additional Shares for an aggregate purchase price equal to
(a) $750,000, plus (b) the additional amount (if any) required to complete
funding of the R&D Program pursuant to the Updated R&D Budget (together,
the “Additional
Aggregate Purchase Price”).”
6.
Sections 2.3(a) and 2.3(b) of the Securities Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
“(a) $2,000,000
of the Initial Aggregate Purchase Price to fund the R&D Program; provided, that the
Company shall conduct the R&D Program strictly in accordance with the
R&D Budget; and provided, further, that the R&D Program and the R&D Budget and each update to R&D Program and the R&D Budget
shall form a part of this Agreement and constitute an amendment
hereto;
(b) $1,500,000
of the Initial Aggregate Purchase Price for general working capital and other
corporate purposes; and”
7.
Section 2.3(c) of the Securities Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
“(c)
$750,000 of the Additional Aggregate
Purchase Price for general working capital and other corporate purposes, and the
balance of the Additional Aggregate Purchase Price (if any) strictly in
accordance with the terms of the Updated R&D Budget, including, without
limitation, the expenditure schedule and payment mechanism included
therewith.”
8.
Satisfaction of Conditions
to Initial Closing. Upon execution of this Amendment by the
Company and the Purchaser, the conditions to the respective obligations of the
parties to effectuate the Initial Closing set forth in Section 2.1(d)(i) of the
Securities Purchase Agreement shall be deemed satisfied or waived by the party
entitled to the benefit thereof. The Initial Closing shall occur no later than
September 30, 2009.
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9.
No
Modification. Except as specifically amended hereby, the Securities
Purchase Agreement shall continue in full force and effect unmodified and the
parties hereby reaffirm the same.
10. Governing Law. This
Amendment shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York, without regard to principles of conflict
of laws.
11. Counterparts. This
Amendment may be signed in any number of counterparts, each of which shall be an
original and all of which shall be deemed to be one and the same instrument,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. A facsimile or electronic transmittal (e.g. pdf)
signature shall be deemed to be an original signature for purposes of this
Amendment.
12. Amendment. The terms
and conditions of this Amendment or the Securities Purchase Agreement may not be
amended or waived, except with the prior written consent of each party
hereto.
[Remainder of page
intentionally left blank; signature page to follow]
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IN WITNESS WHEREOF, the
parties, intending to be legally bound, executed this Amendment as of the date
first above written.
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The
Company
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By:
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/s/ Xxxx Xxxx | |
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Name:
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Xxxx Xxxx | |
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Title:
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President & COO | |
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The
Purchaser
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TEVA
PHARMACEUTICAL INDUSTRIES LIMITED
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By:
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/s/ Xxxxxx Xxxxxxxx | |
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Name:
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Xxxxxx Xxxxxxxx, Ph.D. | |
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Title:
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Vice President Innovative Ventures | |
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By:
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/s/ Xxxx Xxxxxx | |
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Name:
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Xxxx Xxxxxx | |
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Title:
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Senior Director Innovative Ventures | |
