newcardio_8k-ex1029.htm


    Exhibit 10.29

     

     

    AMENDMENT
TO SECURITIES PURCHASE AGREEMENT

    
      


      This
Amendment to Securities Purchase Agreement (this “Amendment”)
is made as of the 1st day of December 2008, by and among NewCardio, Inc., a
Delaware corporation (the “Company”),
and each purchaser identified on the signature pages to that certain Securities
Purchase Agreement (the “SPA”),
dated as of  December 27, 2007, between Marine Park Holdings, Inc., a
Delaware corporation and the Purchasers identified on the signature pages
thereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).

      


      Capitalized terms defined in the SPA
and not otherwise defined herein shall have the same meanings as ascribed to
them in the SPA.

      


      WHEREAS, by a vote of the Purchasers
holding 67% in interest of each class of the Securities that are issued and
outstanding, this Amendment has been approved;

      


      NOW, THEREFORE, in consideration of
the mutual covenants contained in this Agreement, and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the SPA is hereby amended as follows:

      


      1.  Wherever it appears in
the SPA, the term “Certificate of Designation” shall be replaced with “Certificates
of Designation” that shall mean (x) the Certificate of Preferences,
Rights and Limitations of Series A 10% Convertible Preferred Stock, as amended
by the Amendment to Certificate of Designation attached hereto as Exhibit A, and (y) the
Certificate of Preferences, Rights and Limitations of Series B Convertible
Preferred Stock attached hereto as Exhibit B, to be filed with
the Secretary of State of the State of Delaware.

      


      2.  a.  The terms
“Conversion Price”, “Exempt Issuance”, “Merger Date”, and “Participation
Maximum” are hereby deleted in their entirety.

      


      b.  The term “Legend
Removal Date” shall be amended in its entirety to mean the third Trading
Day following the later to occur of (x) delivery by a Purchaser of a certificate
representing Underlying Shares (together with customary representations ), and
(y) the last day of the Lock-Up Period (hereinafter defined).

      


      c.  The term “Lock-Up
Period” shall be added to the SPA and shall mean the period commencing on
the date the Company provides written notice (the “Notice
Date”) to the Purchasers that it has entered into an agreement with an
investment bank or placement agent for the private placement of debt securities
and/or equity or equity-linked securities, generating net proceeds to the
Company of at least $10 million (a “Financing
Transaction”), and ending on the earlier to occur of (x) the date that is
90 days from the Notice Date if no Financing Transaction has been consummated,
(y) the date that is 180 days after the closing of a Financing Transaction, or
(z) September 30, 2009.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      


      3.  The term “Preferred
Stock” is amended in its entirety to mean, collectively, the Series A
Preferred (hereinafter defined) and Series B Preferred (hereinafter
defined).  For purposes hereof, the term “Series A Preferred” shall
mean the up to 12,000 shares of the Company’s 10% Series A Convertible Preferred
Stock and the term “Series B Preferred” shall mean the up to 18,000 shares of
the Company’s Series B Convertible Preferred Stock.

      


      4.  The terms “Registration
Rights Agreement”, “Registration Statement”, “Stated Value”, “Subscription
Amount”, “Subsequent Financing”, “Subsequent Financing Notice”, and “VWAP”, are
hereby deleted in their entirety.

      


      5.  The term “Transaction
Documents” is amended in its entirety to mean the SPA (as amended
hereby), the Certificates of Designation, and the Warrants, together with all
schedules and exhibits thereto and hereto.

      


      6.  On
the date of this Amendment:

      


      
        	
                 
      

              	
                a)

              	
                the
      Series A Preferred will be exchanged for Series B Preferred at the rate of
      105 Series B Preferred for every 100 Series A Preferred, with fractional
      shares being rounded up or down to the nearest whole
  share;

              


      

      


      
        	
                 
      

              	
                b)

              	
                (i)
      Vision Opportunity Master Fund, Ltd. (‘Vision
      Opp”) shall exercise $1,543,750 of its J Warrant, at the exercise
      price of $1.235 per share of Common Stock, for which it shall receive
      1,250 Series B Preferred in lieu of the Common Stock it otherwise would
      have been entitled to receive, and (ii) Vision Capital Advantage Fund, LP
      (“Vision
      Adv”) shall exercise $455,715 of its J Warrant, at the exercise
      price of $1.235 per share of Common Stock, for which it shall receive 369
      Series B Preferred in lieu of the Common Stock it otherwise would have
      been entitled to receive;

              


      

      


      
        	
                 
      

              	
                c)

              	
                Platinum
      – Montaur Life Sciences, LLC (“Platinum”)
      shall exercise $800,280 of its J Warrant, at the exercise price of $1.235
      per share of Common Stock, for which it shall receive 648 Series B
      Preferred in lieu of the Common Stock it otherwise would have been
      entitled to receive;

              


      

      


      
        	
                 
      

              	
                d)

              	
                (i)
      Vision Opp shall receive 1,163 Series B Preferred in consideration for the
      cancelation of the balance of its J Warrant and a total of 1,246 Series B
      Preferred in consideration for the cancelation of the balance of its J-A
      Warrant, and (ii) Vision Adv shall receive 344 Series B Preferred in
      consideration for the cancelation of the balance of its J Warrant and a
      total of 368 Series B Preferred in consideration for the cancelation of
      the balance of its J-A Warrant;

              


      

      


      
        	
                 
      

              	
                e)

              	
                Platinum
      will receive a total of 603 Series B Preferred in consideration for the
      cancelation of the balance of its J Warrant and a total of 645 Series B
      Preferred in consideration for the cancelation of the balance of its J-A
      Warrant; and

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      
        	
                 
      

              	
                f)

              	
                The
      Series A Warrant will be amended and restated in form and substance as the
      Amended and Restated A Warrant attached hereto as Exhibit
    C.

              


      

      


      7.           
Sections 2.1, 2.2 and 2.3 of the SPA are hereby deleted in their
entirety.

      


      8.           
Wherever the words “on the date hereof”, “as of the date hereof” or other
similar words that, in the SPA as of December 27, 2007, were intended to refer
to December 27, 2007, the same shall continue to mean December 27,
2007.

      


      9.           
Paragraph 3.1(aa) of the SPA is hereby deleted in its entirety.

      


      10.           The
first sentence of paragraph 4.1(a) of the SPA is amended in its entirety to read
as follows:  “Except to the extent covered by an effective
registration statement on Form S-1, the Securities may only be disposed of in
compliance with state and federal securities laws.

      


      11.           The
first sentence of Section 4.6 of the SPA is hereby deleted in its
entirety.

      


      12.           Section
4.9 of the SPA is hereby amended and restated in its entirety to read as
follows:

      


      
        	
                 
      

              	
                4.9

              	
                Lock-Up.

              


      

      


      a)  No
Holder of Preferred Stock, or the Warrants, without first obtaining the prior
written consent of the Corporation, during the Lock-Up Period (1) may offer,
pledge, announce the intention to sell, sell, contract to sell, sell a stock
short, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend or otherwise
transfer or dispose of, directly or indirectly, any shares of Preferred Stock or
Conversion Shares (including without limitation, Preferred Stock or Conversion
Shares which may be deemed to be beneficially owned by the Holder in accordance
with the rules and regulations of the Commission), or Warrants or Warrant Shares
(including without limitation, Warrants or Warrant Shares which may be deemed to
be beneficially owned by the Holder in accordance with the rules and regulations
of the Commission) (such Preferred Stock, Conversion Shares, Warrants and
Warrant Shares, being hereinafter collectively referred to the “Lock-Up
Securities”), or (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Lock-Up
Securities, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or such other securities, in cash or
otherwise.  In addition, during the Lock-Up Period, no Holder of any
of the Lock-Up Securities, without the prior written consent of the Corporation,
shall make any demand for or exercise any right with respect to, the
registration of any Lock-up Securities or any security convertible into or
exercisable or exchangeable for the Lock-Up Securities.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      b)  Notwithstanding
the foregoing, the restrictions set forth in clause (1) and (2) above shall not
apply to (a) transfers (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by the
restrictions set forth herein, (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, (iii) with the prior written consent of the
Corporation, (iv) to an Affiliate of the Holder; provided such Affiliate agrees
in writing to be bound by the terms hereof, or (b) the establishment of any
10b5-1 selling plan provided the initial sale date under such plan occurs after
the end of the Lock-Up Period.  For purposes of this provision,
“immediate family” shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin.  None of the restrictions set forth
in this Section shall apply to securities acquired by a Holder in open market
transactions or to securities acquired by a Holder before the Effective
Date.

       

      c)  In
furtherance of the foregoing, the Corporation, and any duly appointed transfer
agent for the registration or transfer of the Lock-Up Securities and Common
Stock, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Section and they
are authorized to place a restrictive legend with regard to the limitations on
transfer imposed by this Section on any certificate evidencing suchLock-Up
Securities.

      


      13.           Sections
4.12, 4.13 and 4.17 of the SPA are hereby deleted in their
entirety.

      


      14.           Sections
5.1 and 5.2 of the SPA are hereby deleted in their entirety.

      


      15.           The
Company’s Registration Statement on Form S-1, declared effective on August 29,
2008, shall be allowed to lapse and the Company shall have no further
obligations in respect thereof, and the Registration Rights Agreement shall
terminate as the date hereof and be of no further force or effect.

      


      16.           The
Company shall, by 5:00 pm on the 4th
Business Day immediately following the date hereof, issue a Current Report on
Form 8-K, disclosing the material terms of the transactions contemplated
hereby.

      


      17.           Except
as amended hereby, the SPA remains in force and effect.

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


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

       

      


      


      
        	
                NewCardio,
      Inc.

                 

              	
                Address:

                2350 Mission College Blvd.

                Suite 1175

                Santa Clara, CA 95054

                Facsimile Number: 775-254-5118

                E-mail:
      rbrounstein@newcardio.com

                 

                 

              
	
                By:    s/s
      Richard D.
      Brounstein                  
      

                Name:
      Richard D. Brounstein

                Title:  Executive
      Vice President, CFO & Secretary

                 

              	 
      
	
                With
      a copy to (which shall not constitute notice):

                 

                 

                 

              	 
      


      

      


      [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

      


      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
 

      


       [PURCHASER
SIGNATURE PAGES TO AMENDMENT TO SECURITIES PURCHASE AGREEMENT]

      


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

       

      Name of
Purchaser: Vision Opportunity Master Fund, Ltd.

       

      Signature of Authorized Signatory of
Purchaser: s/s Adam
Benowitz

       

      Name of
Authorized Signatory: Adam Benowitz

       

      Title of
Authorized Signatory: Director

       

      Email
Address of Authorized Signatory:
___________________________________________

       

      Fax
Number of Authorized Signatory:
_________________________________________

       

      
        	
                Address
      for Notice of Purchaser:

              	
                c/o
      Vision Capital Advisors

                
                  20
      W 55th
      Street, 5th
      Fl.

                  New
      York, NY 10019

                  Attn.:  Jess
      Jones or Kim Gabriel

                

              


      

       

      


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

      


      Shares of
Series A Preferred Stock:____________

       

      A
Warrants (Warrant Shares):_______________

       

      J
Warrants (Warrant Shares):_________________

       

      J-A
Warrants (Warrant Shares):_______________

       

      EIN
Number:  ____________________________

      


      


      


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       [PURCHASER
SIGNATURE PAGES TO AMENDMENT TO SECURITIES PURCHASE AGREEMENT]

      


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

       

      Name of
Purchaser: Vision Capital Advantage fund, L.P.

       

      Signature of Authorized Signatory of
Purchaser: s/s Adam
Benowitz

       

      Name of
Authorized Signatory: Adam Benowitz

       

      Title of
Authorized Signatory: Authorized signatory of VCAF GP, LLC

       

      Email
Address of Authorized Signatory:
___________________________________________

       

      Fax
Number of Authorized Signatory:
_________________________________________

       

      
        	
                Address
      for Notice of Purchaser: 

              	
                c/o
      Vision Capital Advisors

                
                  20
      W 55th Street, 5th Fl.

                  New
      York, NY 10019

                  Attn.:  Jess
      Jones or Kim Gabriel

                

              


      

       

      


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

      


      Shares of
Series A Preferred Stock:____________

       

      A
Warrants (Warrant Shares):________________

       

      J
Warrants (Warrant Shares):_________________

       

      J-A
Warrants (Warrant Shares):_______________

       

      EIN
Number:  ____________________________

      


      


      


      [SIGNATURE
PAGES CONTINUE]


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
 

      


       [PURCHASER
SIGNATURE PAGES TO AMENDMENT TO SECURITIES PURCHASE AGREEMENT]

      


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

       

      Name of
Purchaser:  Platinum – Montaur Life Sciences, LLC

       

      Signature of Authorized Signatory of
Purchaser: s/s Michael
M. Goldberg, MD

       

      Name of
Authorized Signatory: Michael M. Goldberg, MD

       

      Title of
Authorized Signatory: _____________________________________

       

      Email
Address of Authorized Signatory:
___________________________________________

       

      Fax
Number of Authorized Signatory:
_________________________________________

       

      
        	
                Address
      for Notice of Purchaser: 

              	
                Platinum
      - Montaur Life Sciences, LLC

                
                  c/o
      Montaur Capital Partners

                  152
      W 57th
      St.

                  4th
      Floor – Platinum

                  New
      York, NY 10019

                  Attn.:
      Michael M. Goldberg, MD,
Principal

                

              


      

       

      


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

      


      Shares of
Series A Preferred Stock:____________

       

      A
Warrants (Warrant Shares):_________________

       

      J
Warrants (Warrant Shares):_________________

       

      J-A
Warrants (Warrant Shares):_______________

       

      EIN
Number:  ____________________________

      


      


      


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PAGES CONTINUE]


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
 

      


       [PURCHASER
SIGNATURE PAGES TO AMENDMENT TO SECURITIES PURCHASE AGREEMENT]

      


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

       

      Name of
Purchaser: Harborview Master Fund LP

       

      By:    Navigator
Management Ltd., its authorized signatory

       

      By:  /s/ Dave
Sims                                       


      Name:  Dave
Sims

      Title:  Authorized
Signatory

       

      Email
Address of Authorized Signatory:
___________________________________________

       

      Fax
Number of Authorized Signatory: 284-494-4771

       

      
        	
                Address
      for Notice of Purchaser: 

              	
                Harbor
      House, 2nd
      Floor

                
                  Waterfront
      Drive

                  P.O.
      Box 972

                  Road
      Town, Tortola  VG 1110

                  British
      Virgin Islands

                

              


      

       

      


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

      


      


      Shares of
Series A Preferred Stock:____________

       

      A
Warrants (Warrant Shares):_________________

       

      J
Warrants (Warrant Shares):_________________

       

      J-A
Warrants (Warrant Shares):_______________

       

      EIN
Number:  ____________________________

      


      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
 

      


       [PURCHASER
SIGNATURE PAGES TO AMENDMENT TO SECURITIES PURCHASE AGREEMENT]

      


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

       

      Name of
Purchaser: Enable Growth Partners LP

       

      Signature of Authorized Signatory of
Purchaser: s/s
Brendan O’Neil

       

      Name of
Authorized Signatory: Brendan O’Neil

       

      Title of
Authorized Signatory: President and Chief Investment Officer

       

      Email
Address of Authorized Signatory:

       

      Fax
Number of Authorized Signatory: 415-677-1578

      


      
        	
                Address
      for Notice of Purchaser: 

              	
                One
      Ferry Building

                
                  Suite
      255

                  San
      Francisco, CA 94111

                

              


      

       

      


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

      


      


      Shares of
Series A Preferred Stock:____________

       

      A
Warrants (Warrant Shares):_________________

       

      J
Warrants (Warrant Shares):_________________

       

      J-A
Warrants (Warrant Shares):_______________

       

      EIN
Number:  ____________________________

       

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Exhibit
A

      


      (See
Exhibit 4.9 to this Form 8-K)

      


      Exhibit
B

      


      (See
Exhibit 4.10 to this Form 8-K)

      


      Exhibit
C

      


      (See
Exhibit 4.11 to this Form 8-K)