EXHIBIT 10.10
FIRST AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT (the
"Amendment"), dated as of January 3, 2001, by and between STEROIDOGENESIS
INHIBITORS INTERNATIONAL, INC. (D/B/A SAMARITAN PHARMACEUTICALS), a Nevada
corporation (the "Company"), and FUSION CAPITAL FUND II, LLC (together with its
permitted assigns, the "Buyer"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings given them in the Common Stock Purchase
Agreement.
WHEREAS, the parties hereto are parties to a Common Stock Purchase
Agreement dated as of November 2, 2000 (the "Common Stock Purchase Agreement");
WHEREAS, pursuant to the Common Stock Purchase Agreement, the Buyer has
agreed to purchase, and the Company has agreed to sell up to $10,000,000 of the
Common Stock all in accordance with the terms and conditions of the Common Stock
Purchase Agreement;
WHEREAS, the parties desire to increase the Available Amount such that
the Buyer shall purchase and the Company shall sell up to $20,000,000 of the
Common Stock under the Common Stock Purchase Agreement;
WHEREAS, the Buyer desires to advance the Company such funds as from
time to time the Buyer shall determine in its sole discretion as an advance
against purchases of Common Stock under the Common Stock Purchase Agreement;
WHEREAS, in order to increase the Available Amount to $20,000,000 and
to induce the Buyer to make such advances to the Company, the Buyer and the
Company desire to amend the Common Stock Purchase Agreement in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the agreements, covenants and considerations
contained herein, the parties hereto agree as follows:
1. Amendments.
a. The Preamble to the Common Stock Purchase Agreement is
hereby amended and restated in its entirety as follows:
"Subject to the terms and conditions set forth in this
Agreement, the Company wishes to sell to the Buyer, and the
Buyer wishes to buy from the Company, up to Twenty Million
Dollars ($20,000,000) of the Company's common stock, par value
$0.001 per share (the "Common Stock"). The shares of Common
Stock to be purchased hereunder are referred to herein as the
"Purchase Shares.""
b. Section 1(b) of the Common Stock Purchase Agreement is
hereby amended and restated in its entirety as follows:
"(b) Buyer's Purchase Rights and Obligations. Subject to the
provisions of Sections 1(d), the Buyer: (i) shall purchase
shares of Common Stock during each Monthly Period equal to the
Monthly Base Amount at the Purchase Price in accordance with
Section 1(e), and (ii) at any time on or after the Maturity
Date, shall have the right to purchase shares of Common Stock
up to the entire remaining Available Amount at the Purchase
Price in accordance with Section 1(e). At any time and from
time to time after the Commencement, the Buyer may, but shall
not be obligated to, in the Buyer's sole discretion, make cash
advances to the Company in such amounts as the Buyer shall
determine as an advance against purchases under this Agreement
(such advances the "Prepaid Amount"). The outstanding balance
of the Prepaid Amount shall increase as any cash advances are
paid to the Company. In order to satisfy the Buyer's
obligation to pay the Purchase Amount for the purchase of
Purchase Shares hereunder, the Prepaid Amount shall be reduced
by the applicable Purchase Amount as the Buyer submits
Purchase Notices hereunder. The Company shall have the right
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to repay to the Buyer the outstanding balance of the Prepaid
Amount to the extent the Buyer has not submitted a Purchase
Notice with respect thereto. At any time when the outstanding
balance of the Prepaid Amount is zero, the Buyer shall, within
three (3) Trading Days of receipt of Purchase Shares, pay to
the Company an amount equal to the Purchase Amount with
respect to such Purchase Shares as full payment for the
purchase of the Purchase Shares so received. The Company shall
not issue any fraction of a share of Common Stock upon any
purchase. All shares of Common Stock (including fractions
thereof) issuable upon a purchase under this Agreement shall
be aggregated for purposes of determining whether the purchase
would result in the issuance of a fraction of a share of
Common Stock. If, after the aforementioned aggregation, the
issuance would result in the issuance of a fraction of a share
of Common Stock, the Company shall round such fraction of a
share of Common Stock up or down to the nearest whole share.
All payments made under this Agreement shall be made in lawful
money of the United States of America by check or wire
transfer of immediately available funds to such account as the
Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any
amount expressed to be due by the terms of this Agreement is
due on any day which is not a Trading Day, the same shall
instead be due on the next succeeding day which is a Trading
Day."
c. Section 1(d)(iii) of the Common Stock Purchase Agreement
is hereby amended and restated in its entirety as follows:
"(iii) Company's Right to Suspend Purchases. If at any time
(1) the outstanding balance of the Prepaid Amount is zero, and
(2) the Closing Sale Price of the Common Stock is below the
Fixed Purchase Price for three consecutive Trading Days, the
Company shall have three (3) Trading Days from the last day of
such three consecutive Trading Day Period to give written
notice (a "Purchase Suspension Notice") to the Buyer
suspending any and all purchases by the Buyer under this
Agreement. The Purchase Suspension Notice shall be effective
only for Purchase Notices which have a Purchase Date later
than three (3) Trading Days after receipt of the Purchase
Suspension Notice by the Buyer. The Purchase Suspension Notice
shall not be effective for any Purchase Notices submitted by
the Buyer in satisfaction of the Prepaid Amount. Any Purchase
Notices submitted by the Buyer which have a Purchase Date on
or prior to the third (3rd) Trading Day after receipt by the
Buyer of the Company's Purchase Suspension Notice must be
honored by the Company as otherwise provided herein. Such
purchase suspension shall continue in effect until the earlier
of: (A) revocation in writing by the Company, at its sole
discretion, (B) such time as the Sale Price of the Common
Stock is above the Fixed Purchase Price or (C) such time as
the outstanding balance of the Prepaid Amount is greater than
zero. After the delivery to the Buyer of a Purchase Suspension
Notice from the Company, the Buyer shall no longer be
obligated to purchase any Purchase Shares from the Company
under Section 1 of this Agreement."
d. Section 1(g) of the Common Stock Purchase Agreement is
hereby deleted in its entirety.
e. Section 4(f) of the Common Stock Purchase Agreement is
hereby amended and restated in its entirety as follows:
(f) Issuance of Initial Commitment Shares/Limitation on Sales
of Commitment Shares. The Company shall issue to the Buyer
promptly after the date hereof, 1,054,945 shares of Common
Stock (the "Initial Commitment Shares"). The Initial
Commitment Shares shall be issued and delivered to the Buyer
by the Company's transfer agent in certificated form and in
accordance with the Transfer Agent instructions attached
hereto as Exhibit I, which instructions shall be executed and
delivered by the Company to the Transfer Agent promptly
following the date hereof. The Buyer agrees that the Buyer
shall not transfer or sell the Initial Commitment Shares until
the Commencement Date or until this Agreement has been
terminated. The Buyer agrees that the Buyer shall not transfer
or sell the Commitment Shares (as defined in Section 7(b)
hereof) until 750 calendar days after the date hereof or until
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this Agreement has been terminated, provided, however, that
the restrictions set forth in this sentence shall not apply:
(i) in connection with any transfers to or among affiliates
(as defined in the Securities Exchange Act of 1934, as
amended), (ii) in connection with any pledge in connection
with a bona fide loan or margin account, or (iii) if an Event
of Default has occurred, or any event which, after notice
and/or lapse of time, would become an Event of Default,
including any failure by the Company to timely issue Purchase
Shares under this Agreement. Notwithstanding the forgoing, the
Buyer may transfer Commitment Shares to a third party in order
to settle a sale made by the Buyer where the Buyer reasonably
expects the Company to deliver Purchase Shares to the Buyer
under this Agreement so long as the Buyer maintains ownership
of the same overall number of shares of Common Stock by
"replacing" the Commitment Shares so transferred with Purchase
Shares when the Purchase Shares are actually issued by the
Company to the Buyer.
f. Section 4(g) of the Common Stock Purchase Agreement is
hereby amended by adding the following four sentences to
the end of Section 4(g):
"Immediately at such time as the Available Amount is equal to
$10,000,000, the Company shall issue and deliver or cause to
be delivered to the Buyer, a number of shares of Common Stock
equal to 8% of Ten Million Dollars ($10,000,000) divided by
the average of the Closing Sale Prices of the Common Stock for
the five (5) consecutive Trading Days prior to the date that
the Available Amount is equal to $10,000,000. Such shares
issued shall be deemed to be Commitment Shares for all
purposes under this Agreement." The Buyer agrees that the
Buyer shall not transfer or sell such new Commitment Shares
until 750 calendar days after the date such new Commitment
Shares are received by the Buyer or until this Agreement has
been terminated, provided, however, that the restrictions set
forth in this sentence shall not apply: (i) in connection with
any transfers to or among affiliates (as defined in the
Securities Exchange Act of 1934, as amended), (ii) in
connection with any pledge in connection with a bona fide loan
or margin account, or (iii) if an Event of Default has
occurred, or any event which, after notice and/or lapse of
time, would become an Event of Default, including any failure
by the Company to timely issue Purchase Shares under this
Agreement. Notwithstanding the forgoing, the Buyer may
transfer the new Commitment Shares to a third party in order
to settle a sale made by the Buyer where the Buyer reasonably
expects the Company to deliver Purchase Shares to the Buyer
under this Agreement so long as the Buyer maintains ownership
of the same overall number of shares of Common Stock by
"replacing" the new Commitment Shares so transferred with
Purchase Shares when the Purchase Shares are actually issued
by the Company to the Buyer."
g. Section 7(g) of the Common Stock Purchase Agreement is
hereby amended by deleting the reference to "6,000,000"
contained therein and replacing it with "10,000,000."
h. Sections 10(b) and 10(j) of the Common Stock Purchase
Agreement are hereby amended and restated in their
entirety as follows:
"(b) "Available Amount" means Twenty Million Dollars
($20,000,000) in the aggregate which amount shall be reduced
by the Purchase Amount as the Buyer purchases shares of Common
Stock pursuant to Section 1 hereof."
"(j) "Maturity Date" means the date that is 1500 calendar days
(50 Monthly Periods) from the Commencement Date which such
date may be extended by up to an additional three (3) months
by the Company, in its sole discretion, by written notice to
the Buyer."
i. Section 11(k)(v) of the Common Stock Purchase Agreement is
hereby amended and restated in its entirety as follows:
"(v) At any time after the Commencement Date, and so long as
the outstanding balance of the Prepaid Amount is zero and the
Company has provided appropriate notice as described below, if
during any ten (10) consecutive Trading Days the Closing Sale
Price of the Common Stock is below the Fixed Purchase Price
for each of such ten (10) Trading Days, the Company shall have
three (3) Trading Days to give written notice (a "Company
Termination Notice") to the Buyer electing to terminate this
Agreement without any liability or payment to the Buyer (a
"Company Termination"). The Company Termination Notice shall
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not be effective until (a) three (3) Trading Days after it has
been received by the Buyer, (b) the outstanding balance of the
Prepaid Amount is zero and (c) the Company has delivered the
shares of Common Stock, if any, required to be delivered
pursuant to the last two sentences of Section 4(g). The
Company shall have the right to repay to the Buyer the
outstanding balance of the Prepaid Amount to the extent the
Buyer has not submitted a Purchase Notice with respect
thereto. Any Purchase Notices submitted by the Buyer which
have a Purchase Date on or prior to the third (3rd) Trading
Day after receipt by the Buyer of the Company Termination
Notice, must be honored by the Company as otherwise provided
herein. The Company may not deliver a Company Termination
Notice or otherwise effect a Company Termination in
anticipation of or in connection with a Major Transaction
until such Major Transaction (whether or not consummated) has
been publicly disclosed for a period of at least sixty (60)
Trading Days. In the event that within sixty (60) Trading Days
of a Company Termination, the Company publicly discloses that
a Major Transaction has been consummated or may be
consummated, the Buyer shall be entitled to the following
payment equal to the Purchase Rate (determined as of the date
of the Company Termination Notice assuming a Purchase Amount
equal to the remaining Available Amount) multiplied by the
amount, if any that (A) the arithmetic average of the Closing
Sale Price for the Common Stock for the ten (10) Trading Days
following either: (1) the public disclosure of the Major
Transaction or (2) the consummation of the Major Transaction,
as selected by the Buyer, exceeds (B) the Purchase Price
determined as of the date the Company Termination is effected.
Any payments under the previous sentence shall be made either
in the form of cash or registered, freely tradable shares of
Common Stock, eleven (11) Trading Days following either: (1)
the public disclosure of the Major Transaction or (2) the
consummation of the Major Transaction, as selected by the
Buyer. To the extent that such payment has not been paid by
the fifth (5th) Trading Date after its due date, the Buyer
shall be entitled to interest in an amount equal to one
percent (1.0%) of the unpaid amount per day, payable on
demand. If paid in shares of Common Stock, the "dollar value"
per share of Common Stock shall be the average of the Closing
Sale Prices of the Common Stock for the five (5) consecutive
Trading Days prior to the payment date."
j. Section 11(k)(vi) is hereby amended by deleting the
reference to "Ten Million Dollars ($10,000,000)" contained
therein and by replacing it with "Twenty Million Dollars
($20,000,000)."
k. The last paragraph of Section 11(k) of the Agreement is
hereby amended and restated in its entirety as follows:
"Except as set forth in Sections 11(k)(i) 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 1(e)(v) hereof and Section
11 hereof, shall survive any termination of this Agreement. No
termination of this Agreement shall effect 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 including the Company
obligations under Section 1(e)(v) hereof. No termination of
this Agreement by the Company shall be effective unless the
outstanding balance of the Prepaid Amount is zero and the
Company has delivered the shares of Common Stock, if any,
required to be delivered pursuant to the last two sentences of
Section 4(g). In the event of a termination of this Agreement
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by the Buyer, the Company shall within five (5) Trading Days
of the Company's receipt of a notice of termination by the
Buyer, repay to the Buyer the outstanding balance of the
Prepaid Amount, if any. Any such termination by the Buyer
shall nevertheless be effective upon delivery to the Company
of such notice by the Buyer. If within five (5) Trading Days
after the Company's receipt of such termination notice
submitted in accordance herewith, the Company shall fail for
any reason to repay to the Buyer the outstanding balance of
the Prepaid Amount, if any, the Company shall pay in cash, on
demand, interest per day to the Buyer for each day after such
fifth (5th) Trading Day that the outstanding balance of the
Prepaid Amount is not timely repaid to the Buyer, in an amount
equal to 0.1% of the outstanding balance of the Prepaid
Amount."
l. The term "Transaction Documents" shall be deemed to
include this Amendment for all purposes under the Common
Stock Purchase Agreement.
m. Each and any reference to "Ten Million Dollars
($10,000,000)" or "$10,000,000" contained in any Exhibit
to the Common Stock Purchase Agreement is hereby deleted
and replaced with the words and numbers "Twenty Million
Dollars ($20,000,000)" or "$20,000,000," respectively.
2. Effect of Amendment/Incorporation of Certain Provisions.
Except as amended as set forth above, the Common Stock
Purchase Agreement shall continue in full force and effect.
The provisions set forth in Section 11 of the Common Stock
Purchase Agreement are hereby incorporated by reference into
this Amendment.
* * * * *
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IN WITNESS WHEREOF, the Buyer and the Company have caused this First
Amendment to Common Stock Purchase Agreement to be duly executed as of the date
first written above.
THE COMPANY:
STEROIDOGENESIS INHIBITORS
INTERNATIONAL, INC.
(D/B/A SAMARITAN PHARMACEUTICALS)
By:______________________
Name:
Title:
BUYER:
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By:_______________________
Name: Steven G. Martin
Title: President
