AMENDMENTAGREEMENT

 

This Amendment Agreement (this “Agreement”) shall be effective as of August 24, 2009 (the “Effective Date”), by and among Genta Incorporated, a Delaware corporation (the “Company”), and the undersigned parties whose names are set forth on Exhibit A attached hereto (each a “Holder” and collectively the “Holders”).  Capitalized terms used but not defined herein shall have the meanings given to such terms in the Purchase Agreement.

 

Whereas, on July 7, 2009, the Company entered into that certain Securities Purchase Agreement with the Purchasers listed on Exhibit A thereto for the purpose of raising up to $10,000,000 through the sale of securities consisting of (i) up to $7,000,000 in principal amount of July 2009 Notes, (ii) up to $3,000,000 of common stock of the Company (the “Common Stock”) and (iii) related warrants at one or more closings (the “Purchase Agreement”);

 

Whereas, in connection with the Purchase Agreement, the Company entered into the Registration Rights Agreement under which it agreed to register the shares issued under the Purchase Agreement ;

 

Whereas, the Company and the Holders now desire to amend the Purchase Agreement to extend the date and increase the size of the additional closing under the Purchase Agreement to allow the Company additional time to complete the public offering referenced in Section 1.2(b) of the Purchase Agreement; and

 

Whereas, the undersigned Holders represent the required threshold to amend the provisions of each of the Purchase Agreement and the Registration Rights Agreement.

 

Now, Therefore, in consideration of the premises and mutual covenants herein below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.           Definitions.

 

(a)           “April 2009 Consent Agreement” means that certain Consent Agreement dated as of April 2, 2009, among the Company and the Purchasers listed on Exhibit A thereto, as amended.

 

(b)           “July 2009 Notes” means the Company’s Unsecured Subordinated Convertible Promissory Notes due July 2011

 

(c)           “Notes” means the Company’s Senior Secured Convertible Promissory Notes Due June 9, 2010, the Company’s Senior Secured Convertible Promissory Notes Due April 2, 2012 and the July 2009 Notes.

 

(d)           “Registration Rights Agreement” means that certain Registration Rights Agreement dated as of July 7, 2009, by and among the Company and the Buyers listed on Schedule I attached thereto.

2.           Amendment to the Purchase Agreement.

 

The Company and the undersigned Holders representing the Purchasers currently holding at least 66 2/3% of the principal amount of the July 2009 Notes currently outstanding hereby amend the Purchase Agreement as follows:

(a)           The reference to “$7,000,000” in Section 1.1(a) is hereby replaced with “$9,100,000”.

 

(b)           The reference to “$3,000,000” in Section 1.1(a) is hereby replaced with “$3,900,000”.

 

(c)           The reference to “$10,000,000” in Section 1.2 is hereby replaced with “$13,000,000”.

 

(d)           The reference to “August 24, 2009” in Section 1.2(b) is hereby replaced with “August 31, 2009”; and

 

(e)           Exhibit A is hereby deleted in its entirety and replaced with Exhibit B attached to this Agreement.

 

3.           Amendment to the Registration Rights Agreement.

 

The Company and the undersigned Holders representing the Buyers (as defined in the Registration Rights Agreement) who currently hold at least two-thirds of the Registrable Securities (as defined in the Registration Rights Agreement), hereby amend Section 1(d) of the Registration Rights Agreement by deleting Section 1(d) in its entirety and replacing Section 1(d) with the following:

 

“Initial Filing Deadline” means, with respect to the initial Registration Statement required hereunder, the earlier of (i) August 31, 2009 and (ii) two business days after the Expiration Date.”

 

4.           Outstanding Notes.  Each undersigned Holder represents and warrants that as of the Effective Date, such Holder holds the Notes in the principal amounts set forth on such Holder’s signature page hereto.

 

5.           Waiver of Participation Rights.

 

(a)           The undersigned Holders of the Purchase Rights (as defined in the April 2009 Consent Agreement) hereby prospectively and retrospectively waive all rights contained in Section 6(b) of the April 2009 Consent Agreement to receive notice of, and participate in, the sale and issuance of up to $7,000,000 in principal amount of July 2009 Notes and $3,000,000 of Common Stock at the Additional Closing so long as each Holder of the Purchase Rights has the opportunity to participate in the Additional Closing of the Financing as contemplated by  Exhibit C hereto.

 

(b)           The undersigned Holders of the Purchase Rights (as defined in the April 2009 Consent Agreement) hereby prospectively and retrospectively waive all rights contained in Section 6(b) of the April 2009 Consent Agreement to receive notice of and participate in, the sale and issuance of up to $7,000,000 in principal amount of Subordinated Unsecured Convertible Promissory Notes and $3,000,000 of Common Stock pursuant to the S-1 registration statement (File No. 333-153278) so long as each Holder of the Purchase Rights has the opportunity to participate in the offering as contemplated by Exhibit C hereto.

 

6.           Specific Performance; Consent to Jurisdiction; Venue.

 

(a)           The Company and the Holders acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof without the requirement of posting a bond or providing any other security, this being in addition to any other remedy to which any of them may be entitled by law or equity.

 

(b)           The parties agree that venue for any dispute arising under this Agreement will lie exclusively in the state or federal courts located in New York County, New York, and the parties irrevocably waive any right to raise forum non conveniens or any other argument that New York is not the proper venue. The parties irrevocably consent to personal jurisdiction in the state and federal courts of the state of New York. The Company and each Holder consent to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing in this Section 7(b) shall affect or limit any right to serve process in any other manner permitted by law. The Company and the Holders hereby agree that the prevailing party in any suit, action or proceeding arising out of or relating to the this Agreement or the other Transaction Documents, shall be entitled to reimbursement for reasonable legal fees from the non-prevailing party. The parties hereby waive all rights to a trial by jury.

 

7.           Entire Agreement; Amendment. This Agreement contains the entire understanding and agreement of the parties with respect to the matters covered hereby and, except as specifically set forth herein, neither the Company nor any Holder make any representation, warranty, covenant or undertaking with respect to such matters, and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement may be waived or amended other than by a written instrument signed by the Company and the Holders of at least two-thirds of the then outstanding July 2009 Notes.  The Holders acknowledge that any amendment or waiver effected in accordance with this section shall be binding upon each Holder (and their permitted assigns) and the Company, including, without limitation, an amendment or waiver that has an adverse effect on any or all Holders.  Except as amended herein, the Purchase Agreement and Registration Rights Agreement shall remain in full force and effect.

8.           Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery by telecopy or facsimile at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:

 

 

Any party hereto may from time to time change its address for notices by giving written notice of such changed address to the other party hereto.

 

9.           Waivers. No waiver by a party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.

 

10.           Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.

 

11.           Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. The Holders may assign the rights under this Agreement without the consent of the Company. 

 

12.           No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

 

13.           Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any of the conflicts of law principles which would result in the application of the substantive law of another jurisdiction. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted.

 

14.           Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart.

 

15.           Publicity. The Company agrees that it will not disclose, and will not include in any public announcement, the names of the Holders without the consent of the Holders, which consent shall not be unreasonably withheld or delayed, or unless and until such disclosure is required by law, rule or applicable regulation, and then only to the extent of such requirement. Notwithstanding the foregoing, the Holders consent to being identified in any filings the Company makes with the SEC to the extent required by law or the rules and regulations of the SEC.

 

16.           Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible.

 

17.           Further Assurances. From and after the date of this Agreement, upon the request of the Holders or the Company, the Company and each Holder shall execute and deliver such instruments, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement.

 

 

In Witness Whereof, the parties have caused this Amendment Agreement to be executed as of the Effective Date.

 

 

[SIGNATURE PAGES CONTINUE]

 

[HOLDER SIGNATURE PAGES TO AMENDMENT AGREEMENT]

 

IN WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

Name of Holder: ________________________________________________________

 

Signature of Authorized Signatory of Holder: __________________________________

 

Name of Authorized Signatory: ____________________________________________________

 

Title of Authorized Signatory: _____________________________________________________

 

Email Address of Holder:________________________________________________

 

Fax Number of Holder: ________________________________________________

 

 

 

 

 

Address for Notice of Holder:

 

Address for Delivery of Securities for Holder (if not same as address for notice):

 

 [SIGNATURE PAGES CONTINUE]

Tang Capital Partners, LP

667-2 (Baker)

667-1 (Baker)

14159, L.P. (Baker)

Baker Brothers Life Sciences, L.P.

Cat Trail Private Equity Fund LLC

Boxer Capital LLC (Tavistock)

Arcus Ventures Fund

Rodman and Renshaw LLC

Rockmore Investment Master Fund Ltd.

BAM Opportunity Fund LP

Cranshire Capital LP

RRC Biofund LP

Raymond P. Warrell, Jr.

Loretta M. Itri