Exhibit 10.1


 


SECOND AMENDMENT AGREEMENT


 


This
Second Amendment Agreement (the “Agreement”), effective as of November 30,
2007, is by and among Ceragenix Pharmaceuticals, Inc., a Delaware
corporation (the “Company”) and the investors signatory hereto (each, a “Purchaser”
and collectively, the “Purchasers”). 
Capitalized terms not defined in this Agreement shall have the meanings
ascribed to such terms in the Purchase Agreement (as defined below).


 


WHEREAS,
pursuant to a securities purchase agreement dated December 5, 2006 among
the Company and the Purchasers (the “Purchase Agreement”), the
Purchasers were issued convertible debentures with an original aggregate
principal amount of $5,000,000 and warrants to purchase shares of Common Stock;


 


WHEREAS,
on June 30, 2007, the parties entered into an Amendment Agreement pursuant
to which the Company issued the Purchasers new Warrants; and


 


                WHEREAS, the parties wish to
further amend certain terms of the Transaction Documents.


 


NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for good
and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Purchasers and the Company agree as follows:


 


1.             Extension of
Monthly Redemption and Amendments to Section 1 of the Debenture. The
Purchasers hereby agree to extend the initial Monthly Redemption Date from December 1,
2007 until the earlier of (i) June 30, 2008 and (ii) the
consummation of a Financing.


 


a)             The
definition of “Equity Conditions” set forth in Section 1 of the
Debentures is hereby amended and restated as follows:


 


 “Equity Conditions” means, during the
period in question, (i) the Company shall have duly honored all
conversions and redemptions scheduled to occur or occurring by virtue of one or
more Notices of Conversion of the Holder, if any, (ii) the Company shall
have paid all liquidated damages and other amounts owing to the Holder in
respect of this Debenture, (iii) there is an effective Registration
Statement pursuant to which the Holder is permitted to utilize the prospectus
thereunder to resell all of the shares issuable pursuant to the Transaction
Documents (and the Company believes, in good faith, that such effectiveness
will continue uninterrupted for the foreseeable future), (iv) the Common
Stock is trading on a Trading Market and all of the shares issuable pursuant to
the Transaction Documents are listed or quoted for trading on such Trading
Market (and the Company believes, in good faith, that trading of the Common
Stock on a Trading Market will continue uninterrupted for the foreseeable
future), (v) there is a sufficient number of authorized but 


 

















 


unissued and
otherwise unreserved shares of Common Stock for the issuance of all of the
shares issuable pursuant to the Transaction Documents, (vi) there is no
existing Event of Default or no existing event which, with the passage of time
or the giving of notice, would constitute an Event of Default, (vii) the
issuance of the shares in question (or, in the case of a Monthly Redemption,
the shares issuable upon conversion in full of the Monthly Redemption Amount)
to the Holder would not violate the limitations set forth in Section 4(c) herein,
(viii) there has been no public announcement of a pending or proposed
Fundamental Transaction or Change of Control Transaction that has not been
consummated, (ix) the Holder is not in possession of any information
provided by the Company that constitutes, or may constitute, material
non-public information, and (x) for a period of 20 consecutive Trading Days
prior to the applicable date in question, the daily trading volume for the
Common Stock on the principal Trading Market exceeds 25,000 shares per Trading
Day (subject to adjustment for forward and reverse stock splits and the like).


 


b)            The
definition of “Financing” is as follows:


 


“Financing”
means any sale of debt or equity securities by the Company or the incurrence of
indebtedness in a single or series of related transactions with the same
purchasers or bank and under the same terms, pursuant to which the Company
receives gross proceeds in excess of $3,000,000; provided, however,
a Financing shall not include: (i) purchase money indebtedness; (ii) the
conversion of securities issued by the Company that are outstanding on the date
hereof; (iii) securities or debt issued or incurred in replacement or
refinancing of securities of the Company that are outstanding on the date
hereof; and (iv) obligations under any capital or operating leases.


 


c)             The
definition of “Monthly Redemption Date” set forth in Section 1 of
the Debentures is hereby amended and restated as follows:


 


“Monthly
Redemption Date” means the 1st of each month, commencing
immediately upon the earlier of (a) June 30, 2008 and (b) the
consummation of a financing by the Company, and terminating upon the full
redemption of this Debenture. The first such Monthly Redemption Date shall be
herein referred to as the “First Monthly Redemption Date” and each such date
thereafter, each a “Monthly Redemption Date”.


 


d)            The
definition of “Monthly Redemption Amount” set forth in Section 1 of
the Debentures is hereby amended and restated as follows:


 


“Monthly
Redemption Amount” means (i) as to the First Monthly Redemption Date,
$                (1),
plus accrued and unpaid interest, 


 

















 


liquidated damages
and any other amounts then owing to such Holder in respect of this Debenture
and (ii) as to each Monthly Redemption after the First Monthly Redemption
Date,
$                (2),
plus accrued but unpaid interest,
liquidated damages and any other amounts then owing to such Holder in respect
of this Debenture.






(1) Refer
to Schedule 2.


(2) Refer
to Schedule 2.


 


2.             Amendment to the Principal
Amount of the Debentures.  In consideration for extending
the First Monthly Redemption Date, the Company shall increase the original
aggregate principal amount of the Debentures by 10% of the original aggregate
principal amount initially issued to the Purchasers pursuant to the Purchase
Agreement, or the aggregate amount equal to $500,000 (such additional amount,
the “Increased Principal Amount”). The Increased Principal Amount shall
be allocated pro rata among the Purchasers based on each Purchaser’s original
principal amount and shall be added to the outstanding principal amount of the
Debenture for each Purchaser. For clarity and avoidance of doubt, the original
principal amount of each Purchaser’s Debenture, original Monthly Redemption
Amount thereunder shall be as set forth on Schedule 2 hereto, along with
the amended principal amounts and Monthly Redemption Amounts as provided
hereunder.  The Company and the Purchasers agree that the Purchasers may
add the pro rata portion of the Increased Principal Amount to the original
principal amount of such Purchaser’s Debenture without issuing a new Debenture;
provided, however, the Company agrees to issue a new Debenture, reflecting the
Increased Principal Amount and the original principal amount to any Purchaser
that requests a new Debenture and surrenders its existing Debenture.


 


3.             Effect on
Purchase Agreement.  The foregoing amendments are given
solely in respect of the transactions described herein. Except as expressly set
forth herein, all of the terms and conditions of the Transaction Documents, as
amended, shall continue in full force and effect after the execution of this Agreement,
and shall not be in any way changed, modified or superseded by the terms set
forth herein.  This Agreement shall not
constitute a novation or satisfaction and accord of any Transaction Document.


 


4.             No Additional
Warrants.  The increase in the Principal
Amount of the Debentures shall not be accompanied by any increase in the number
of Warrants issued to each Purchaser.


 


5.             Filing of Form 8-K.  Within 3 Trading Days of the date hereof, the
Company shall issue a Current Report on Form 8-K, reasonably acceptable to
each Purchaser disclosing the material terms of the transactions contemplated
hereby, which shall include this Agreement as an attachment thereto.  In addition, within 1 Trading Day of the date
hereof, the Company shall file a prospectus supplement under Rule 424
under the Securities Act to registration statement number 333-[      ], disclosing the terms of the
transactions hereunder.


 


6.             Conditions to
Purchasers Obligations.  The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:


 

















 


a)             the
accuracy in all material respects on the date of the Closing of the
representations and warranties of the Company contained herein;


 


b)            all
obligations, covenants and agreements of the Company required to be performed
at or prior to the Closing shall have been performed;


 


c)             all
Purchasers parties to the Purchase Agreement shall have agreed to the terms and
conditions of this Agreement;


 


d)            there
shall have been no Material Adverse Effect with respect to the Company since
the date hereof; and


 


e)             from
the date hereof to the Closing, trading in the Common Stock shall not have been
suspended by the Commission (except for any suspension of trading of limited
duration agreed to by the Company, which suspension shall be terminated prior
to the Closing), and, at any time prior to the Closing, trading in securities
generally as reported by Bloomberg Financial Markets shall not have been
suspended or limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on any Trading Market,
nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material
outbreak or escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material adverse change in,
any financial market which, in each case, in the reasonable judgment of each
Purchaser, makes it impracticable or inadvisable to consummate the transactions
hereunder.


 


7.             Representations
and Warranties of the Company.  The
Company hereby makes the representations and warranties set forth below to the
Purchasers that as of the date of its execution of this Agreement:


 


a)             Authorization;
Enforcement.  The Company has the
requisite corporate  power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder and thereunder.  The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Company and no further action is required
by such Company, its board of directors or its stockholders in connection
therewith.  This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms hereof
will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law.


 

















 


b)            No
Conflicts.  The execution, delivery
and performance of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby do not and will not: (i) conflict
with or violate any provision of the Company’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, result in the creation of any lien upon any
of the properties or assets of the Company, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material agreement, credit facility, debt or
other material instrument (evidencing Company debt or otherwise) or other
material understanding to which the Company is a party or by which any property
or asset of the Company is bound or affected, or (iii) conflict with or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected.


 


c)             Capitalization.  The Company is a duly organized and validly
existing corporation in good standing under the laws of the State of
Delaware.  The capitalization of the
Company is as set forth on Schedule 7(c).  Immediately following the conversion of the
Debentures hereunder, there will be issued and outstanding 19,896,909 shares of Common Stock, all
of which such issued and outstanding shares will be validly issued, fully paid
and nonassessable.  The Debentures and
Conversion Shares, when issued in accordance with the terms of this Agreement
and the Debentures, will be duly authorized, validly issued, fully paid and
nonassessable. Except as described in this Section or as set forth on the
Disclosure Schedules to the Purchase Agreement or Schedule 7(c) attached
hereto, there are no issued or outstanding securities and no issued or
outstanding options, warrants or other rights, or commitments or agreements of
any kind, contingent or otherwise, to purchase or otherwise acquire shares of
Common Stock or any issued or outstanding securities of any nature convertible
into shares of Common Stock.  There is no
proxy or any other agreement, arrangement or understanding of any kind
authorized, effective or outstanding which restricts, limits or otherwise
affects the right to vote any shares of Common Stock.


 


d)            Other
Representations, Warranties and Covenants. Except as set forth on Schedule
7(d), the representations, warranties and covenants of the Company with
respect to the Debentures and Conversion Shares shall be identical in all
respects to the representations, warranties and covenants of the Company with
respect to the Debentures issued pursuant to the Purchase Agreement (and shares
of Common Stock underlying such existing Debentures) issued pursuant to the
Purchase Agreement and other Transaction Documents (as defined under the
Purchase Agreement) and the Company hereby makes such representations,
warranties and covenants as though fully set forth herein as of the date
hereof, and all such representations, warranties and obligations are
incorporated herein by reference, including without limitation, all
registration rights with respect to the Conversion Shares as though such shares
were Registrable Securities (as defined under the Registration Rights Agreement
entered into in connection with the Purchase Agreement).


 

















 


8.             Representation
and Warranty of the Purchasers.  The
Purchasers severally and not jointly hereby make the representation and
Warranty set forth below to the Company that as of the date of its execution of
this Agreement, such Purchaser represents and warrants that (a) the
execution and delivery of this Agreement by it and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
action on its behalf and (b) this Agreement has been duly executed and
delivered by such Purchaser and constitutes the valid and binding obligation of
such Purchaser, enforceable against it in accordance with its terms except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.


 


9.             Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be made in
accordance with the provisions of the Purchase Agreement.


 


10.           Survival. All
warranties and representations (as of the date such warranties and
representations were made) made herein or in any certificate or other
instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the parties hereto and shall survive the
issuance of the Debentures. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties; provided
however that no party may assign this Agreement or the obligations and rights
of such party hereunder without the prior written consent of the other parties
hereto.


 


11.           Execution.  This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. 
In the event that any signature is delivered by facsimile transmission,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile signature page were an original thereof.


 


12.           Severability.  If any provision of this Agreement is held to
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.


 


13.           Governing Law.
 All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be determined pursuant to the Governing Law provision of the Purchase
Agreement.


 


14.           Entire Agreement.  The Agreement, together with the exhibits and
schedules thereto, contain the entire understanding of the parties with respect
to the subject matter hereof 


 

















 


and
supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.


 


15.           Construction.  The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.  The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied
against any party.


 


16.           Independent
Nature of Purchasers’ Obligations and Rights.  The obligations of each Purchaser hereunder
are several and not joint with the obligations of any other Purchasers
hereunder, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser hereunder. Nothing contained herein
or in any other agreement or document delivered at any closing, and no action
taken by any Purchaser pursuant hereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement. Each Purchaser shall be entitled to protect and enforce its
rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose.


 


17.           Termination.  This Agreement may be terminated by any
Purchaser, as to such Purchaser’s obligations hereunder, by written notice to
the other parties, if the Closing has not been consummated on or before December 21,
2007.


 


18.           Fees and Expenses.  Each party shall pay the fees and expenses of
its advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.  The Company shall pay all transfer agent
fees, stamp taxes and other taxes and duties levied in connection with the
delivery of any Debentures and Conversion Shares.


 


***********************


 

















 


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


 


	
  CERAGENIX PHARMACEUTICALS, INC.

  
	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Schedule 2


 


	
   

  	
   

  	
  Beginning

  Balances

  	
   

  	
  Monthly

  Redemption

  Amount

  	
   

  	
  

  Transfers

  	
   

  	
  Ending

  Balances

  	
   

  	
  Amended

  Monthly

  Redemption

  Amount

  	
   

  	
  

  Amended

  Balances

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


[PURCHASER SIGNATURE PAGES TO CGXP SECOND AMENDMENT AGREEMENT]


 


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


 


	
  Name of Purchaser:

  	
   

  
	
  Signature of Authorized Signatory of Purchaser:

  	
   

  
	
  Name of Authorized Signatory:

  	
   

  
	
  Title of Authorized Signatory:

  	
   

  
	
  Email Address of Purchaser:

  	
   

  
	
   

  	
   

  
	
  Address for Notice of Purchaser:

  
	
   

  	
   

  
	
  Address for Delivery of Securities for Purchaser (if
  not same as above):

  
	
   

  	
   

  
	
   

  	
   

  
	
  New Principal Amount: