AMENDMENT NO. 1 – REGISTRATION RIGHTS AGREMENT
EXHIBIT
10.59
AMENDMENT
NO. 1 –
Amendment No. 1. dated as of February
14, 2008, (“Amendment”), to the Registration Rights Agreement, dated January 8,
2008 (the “Registration Rights Agreement”), by and between Amarillo Biosciences,
Inc. a Texas Corporation (the “Company”) and Firebird Global Master Fund
Ltd. (“Firebird”) Capitalized terms used but not
defined herein have the meanings given to them in the Registration Rights
Agreement.
RECITALS:
|
A.
|
The
Company and Firebird are parities the Securities Purchase Agreement dated
January 8, 2008 (the “Securities Purchase
Agreement”);
|
|
B.
|
In
connection with the Securities Purchase Agreement, the Company and
Firebird executed the Registration Rights
Agreement;
|
|
C.
|
The
Company and Firebird wish to amend certain portions of the Registration
Rights Agreement;
|
|
D.
|
The
parties agree as follows:
|
SECTION
1. AMENDMENTS
Section 1.1 Amendment of Certain
Defined Terms:
(a)
The following terms defined in Section 1. of the Registration Rights Agreement
are hereby amended and restated as follows:
“Filing Date” means,
with respect to the Initial Registration Statement required hereunder, April 25,
2008 (unless such date falls on a day when the Securities and
Exchange Commission is closed in which case the Filing Date shall be the next
date after the 60th
calendar day following the date here of that the Securities and Exchange
Commission is open), with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the earliest
practical date on which the Company is permitted by SEC Guidance to file such
additional Registration Statement related to the Registrable
Securities.
“Registrable
Securities” means (i) all the shares of Common Stock issuable upon
conversion in full of the Preferred Stock (assuming on the date of determination
the shares of Preferred Stock are converted in full without regard
to
1
any
conversion limitations therein) whether sold on the Initial Closing Date or
Second Closing Date (as these terms are defined in the Securities Purchase
Agreement), (ii) all shares of Common Stock issuable as dividends on the
Preferred Stock (whether sold on the Initial Closing Date or Second Closing Date
as these terms are defined in the Securities Purchase Agreement) assuming all
dividend payments are made in shares of Common Stock and the Preferred Stock is
held for at least 3 years, (iii) all Warrant Shares (assuming on the
date of determination the Warrants are exercised in full without regard to any
exercise limitations therein), whether the Warrants were issued on the Initial
Closing Date or on the Second Closing Date, (iv) any additional shares of Common
Stock issuable in connection with any anti-dilution provisions in the Preferred
Stock or the Warrants (in each case, without giving effect to any limitations on
conversion set forth in the Certificate of Designation or limitations on
exercise set forth in the Warrant), whether such Preferred Stock and/or Warrants
were sold on the Initial Closing Date or Second Closing Date (as these terms are
defined in the Securities Purchase Agreement and (v) any securities issued or
issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the
foregoing.
(b) Any
terms defined in the Registration Rights Agreement but not restated and amended
in this Section 1 shall continue to have the meanings given to them in the
Registration Rights Agreement.
SECTION
2. MISCELLANEOUS
Section 2.1 Prior
Agreements. This Amendment
shall completely and fully supersede all other and prior agreements and
correspondence (both written and oral) by and between the Company and Firebird
concerning the subject matter of this Amendment. Except as expressly
amended hereby, the Agreement shall remain in full force and
effect.
Section 2.2 Counterparts. This Amendment
may be executed in any number of counterparts, with the same effect as if all
the signatures on such counterparts appeared on one document. Each
such counterpart shall be deemed to be an original, but all such counterparts
together shall constitute one and the same instrument.
Section 2.3 Amendments. This
Amendment may not be amended, waived, modified, supplemented or terminated in
any manner whatsoever except by a written instrument signed by the Company and
Firebird.
Section 2.4 Binding
on Successors. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
2
Section 2.5 Invalidity. Any
provision of this Amendment that may be determined by a court of competent
jurisdiction to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 2.6 Section
or Paragraph Headings. Section and paragraph headings used
herein are for convenience only and shall not be construed as part of this
Amendment.
Section 2.7 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Amendment shall be determined in
accordance with the provisions of the Securities Purchase
Agreement.
[SIGNATURE PAGE
FOLLOWS]
3
AMARILLO
BIOSCIENCES, INC.
By: /s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title: Chief
Executive Officer
FIREBIRD GLOBAL MASTER FUND,
LTD.
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Director
4
