EXHIBIT 10.71
THIRD AMENDMENT TO REGULATION D COMMON STOCK EQUITY LINE SUBSCRIPTION AGREEMENT
THIS THIRD AMENDMENT TO REGULATION D COMMON STOCK EQUITY LINE
SUBSCRIPTION AGREEMENT (this "Third Amendment") is entered into as of June 2,
2000 by and among Techniclone Corporation, a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Company"), The Tail Wind
Fund, Ltd. ("Tail Wind") and Resonance Ltd. ("Resonance") (each of Tail Wind and
Resonance may hereinafter be referred to as individually as a "Subscriber" and,
collectively, as the "Subscribers").
RECITALS:
WHEREAS, pursuant to the Company's offering ("Offering") of Common
Stock of the Company pursuant to that certain Regulation D Common Stock Equity
Line Subscription Agreement, dated June 16, 1998 between the Company and
Subscribers, as previously amended on June 16, 1998 and September 16, 1998 (as
so amended, the "Subscription Agreement"), the Company has agreed to sell and
Subscribers have agreed to purchase, from time to time, as provided in the
Subscription Agreement, shares of the Company's Common Stock for a maximum
aggregate offering amount of $20,000,000, subject to certain terms and
conditions; and
WHEREAS, the Company and Subscribers desire to eliminate the maximum
aggregate offering amount limitation on the amount of the Offering, and desire
to amend certain other terms of the Subscription Agreement.
TERMS:
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to as follows:
1. Section 1 (Certain Definitions) of the Subscription Agreement is
hereby amended as follows:
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(a) the definition of the term "Aggregate Quarterly Dollar
Maximum" is hereby amended so that it means "Eight Million Four Hundred Thousand
Dollars ($8,400,000)".
(b) the definition of the term "Maximum Offering Amount" is
hereby eliminated from the Subscription Agreement; the reference to such term in
the first recital to the Subscription Agreement is also eliminated from the
Subscription Agreement.
(c) the definition of the term "Term" is hereby amended so
that it reads in its entirety as follows:
"'Term' shall mean the term of this Agreement, which shall be
the date that is three months after the date that the Maximum Call Shares are
exhausted or extinguished under the equity line.
2. Section 2.3.1 (Procedure to Exercise Call for Proceeds) of the
Subscription Agreement is hereby amended so that the provisions thereof
preceding subparagraph (a) thereof read as follows:
"During any Monthly Period beginning on the date on which the
Registration Statement is declared effective by the SEC (the "Effective Date"),
the Company may, in its sole and absolute discretion, elect to exercise one or
more Calls for Proceeds (provided that an Advance Call Notice may not be
delivered at any time during the period between the date commencing on the
immediately preceding Advance Call Notice Date and ending on the Business Day
following the Call Closing Date (as defined in Section 2.3.3 below) applicable
to such Advance Call Notice) according to the following procedure:"
3. Section 2.3.2 (Call Limitations) of the Subscription Agreement is
hereby amended as follows:
(a) Sub-section (a) of Section 2.3.2 is hereby amended to read
in its entirety as follows:
"(a) the Company shall not exercise any Call for
Proceeds for a number of Call Shares in excess of the Maximum Call Shares. The
"Maximum Call Shares" shall equal the difference between (i) 10,522,458 minus
(ii) the aggregate number of all Call Shares sold to Subscribers subsequent to
the date of this Third Amendment. The Maximum Call Shares shall be allocated
among the Subscribers in proportion to each Subscriber's Subscriber Allocation.
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(b) Sub-section (b) of Section 2.3.2 is hereby amended so that
it reads its entirety as follows:
"(b) the Company shall not exercise a Call for
Proceeds for a Call Dollar Amount in excess of the Maximum Call Dollar Amount.
The Maximum Call Dollar Amount shall equal $2,800,000 in any Monthly Period. If
the Company delivers an Advance Call Notice sooner than thirty days following
the most recent Advance Call Notice, then the Intended Call Dollar Amount in
such Advance Call Notice, when added to the Call Dollar Amounts in the previous
Advance Call Notices within the preceding 30 days, may not exceed $2,800,000.
(c) Sub-section (c) of 2.3.2 is hereby amended to read in its
entirety as follows:
"(c) if the Closing Bid Price of the Common Stock on
any Trading Day during the ten (10) Trading Days preceding the Call Date is less
than the Soft Floor Price and greater than the Hard Floor Price, then the
Company shall not exercise a Call for Proceeds for a Call Dollar Amount in
excess of fifteen percent (15%) of the Maximum Call Dollar Amount that would
otherwise be available; if such Closing Bid Price on any Trading Day during such
period is less than two dollars ($2.00) ("Second Soft Floor Price") but not less
than Soft Floor Price, then the Company shall not exercise a Call for Proceeds
for a Call Dollar Amount in excess of the lesser of (i) $1,500,000 or (ii) the
portion of the Maximum Call Dollar Amount that would otherwise be available;
provided, however, that the Second Soft Floor Price, Soft Floor Price and Hard
Floor Price shall be proportionately increased in the event of any combination
or reverse stock split of the shares of Common Stock, or any recapitalization or
reorganization which results in less shares of Common Stock being outstanding,
and the Second Soft Floor Price, Soft Floor Price and Hard Floor Price shall be
proportionately reduced in the event of any stock split or common stock dividend
with respect to the shares of Common stock;"
4. Section 2.4 (Warrants) of the Subscription Agreement is hereby
amended to change all references to "ten percent (10%)", to "fifteen (15%)" in
Sections 2.4.1, 2.4.2 and 2.4.3 of Section 2.4. Future warrants issued under
this equity line shall have a term ending December 31, 2005.
5. Section 7.6 (Expenses) of the Subscription Agreement is hereby
amended by adding the following sentence at the end thereof: "Notwithstanding
the foregoing, the Company shall, at the time of delivery of each Advance Call
Notice for any call amount in excess of $2,500,000 per quarter, deliver to Tail
Wind a dollar amount equal to one half of one percent (50 basis points) of the
Intended Call Dollar Amount set forth in the Advance Call Notice, which dollar
amount may be used by Tail Wind to defray due diligence and other expenses in
connection with such Advance Call Notice.
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6. Intentionally Omitted.
7. Except as set forth above, the Subscription Agreement shall remain
unmodified and in full force in effect.
8. It is hereby agreed that the Registration Rights Agreement and the
Escrow Agreement (as such terms are defined in the Subscription Agreement) are
hereby amended, MUTATIS MUTANDIS to conform to the changes effected by this
Third Amendment.
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IN WITNESS WHEREOF, the undersigned have executed this Third Amendment
as of the 2nd day of June, 2000.
TECHNICLONE CORPORATION
By: /s/ Paul J. Lytle
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Address: Techniclone Corporation
14282 Franklin Avenue
Tustin, CA 92780
Telephone No. (714) 508-6000
Facsimile No. (714) 838-4094
THE TAIL WIND FUND, LTD.
By: /s/ David Crook, June 2, 2000
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Name: David Crook
Title:
Address: The Tail Wind Fund, Ltd.
Windermere House
404 East Bay Street
P.O. Box SS-5539
Nassau, Bahamas
Attention: N. Rolle
Telephone No. (242) 393-8777
Facsimile No. (242) 393-9021
With a copy to:
Tail Wind, Inc.
c/o European American Securities, Inc.
One Regent Street, 1st Floor
London SW1Y 4NS
England
Attention: David Crook
Telephone No. (011) 44-207-468-7660
Facsimile No. (011) 44-207-468-7657
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RESONANCE LIMITED
By: /s/ Moishe Bodner
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Name: Moishe Bodner
Title: President
Address: Resonance Limited
c/o Isac Securities
310 Madison Avenue, Suite 503
New York, NY 10017
Nassau, Bahamas
Telephone No. (917)834-3811
Facsimile No. (718)339-7079
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