Exhibit 10.3


 


[BIOSANTE LETTERHEAD]


 


June 26, 2009


 


Kingsbridge
Capital Limited


P.O. Box
1075


Elizabeth
House


9 Castle
Street


St. Helier


Jersey, JE42QP


Channel
Islands


 


Attention:  Antony Gardner-Hillman


 


Re:          Amendment to Registration Rights Agreement


 


Ladies and
Gentlemen:


 


We refer to
that certain Registration Rights Agreement, dated as of December 15,2008
(the “Agreement”), by and between BIOSANTE PHARMACEUTICALS, INC. (the “Company”)
and KINGSBRIDGE CAPITAL LIMITED (the “Investor”).  Unless otherwise defined, capitalized terms
used in this amendment letter (this “Amendment”) have the meanings
provided for in the Agreement.


 


Each of the
undersigned hereby agrees, subject to execution and delivery of this Amendment
in the place indicated below, that the Agreement shall be amended as follows:


 


Section 1.1(a) of
the Agreement is hereby amended by adding the following to the end thereof:


 


“The parties
acknowledge that the Company may from time to time become subject to the volume
limitations of General Instruction I.B.6. of Form S-3 promulgated by the
Commission (the “S-3 Limitation”).  In
the event that counsel to the Company determines that the Company is subject to
the S-3 Limitation, the Company shall be permitted, subject to prior written
notice to, but not the affirmative consent of, the Investor to cause the Shares
and the Warrant Shares to be registered on Form S-1 promulgated by the
Commission in satisfaction of its obligations to register the Shares and the
Warrant Shares hereunder, provided that the Company shall use commercially
reasonable efforts to cause the Shares and the Warrant Shares to be registered
on Form S-3 at all times during the term hereof during which counsel to
the Company determines that the Company is not subject to the S-3 Limitation.”


 

















 


Section 1.1(e) of
the Agreement is hereby replaced in its entirety with the following:


 


“Deferral or Suspension
During a Blackout Period. 
Notwithstanding the provisions of Section 1.l(d), if in the good
faith judgment of the Company, following consultation with legal counsel, it
would be detrimental to the Company or its stockholders for the Registration
Statement to be filed or for resales of Registrable Securities to be made
pursuant to the Registration Statement due to (i) the existence of a material
development or potential material development involving the Company that the
Company would be obligated to disclose or incorporate by reference in the
Registration Statement and which the Company has not disclosed, or which
disclosure would be premature or otherwise inadvisable at such time or would
have a Material Adverse Effect on the Company or its stockholders, or (ii) a
filing of a Company-initiated registration of any class of its equity
securities, which, in the good faith judgment of the Company, would adversely
affect or require premature disclosure of the filing of such Company-initiated
registration (notice thereof, a “Blackout Notice”), the Company shall
have the right to (A) immediately defer the filing of the Registration
Statement for a period of not more than sixty (60) days beyond the date by
which such Registration Statement was otherwise required hereunder to be filed
or (B) suspend use of such Registration Statement for a period of not more
than thirty (30) days (any such deferral or suspension period, a “Blackout
Period”).  The Investor acknowledges
that it would be seriously detrimental to the Company and its stockholders for
such Registration Statement to be filed (or remain in effect) during a Blackout
Period and therefore essential to defer such filing (or suspend the use
thereof) during such Blackout Period and agrees to cease any disposition of the
Registrable Securities during such Blackout Period.  The Company may not utilize any of its rights
under this Section 1.1(e) to defer the filing of a Registration
Statement (or suspend its effectiveness) more than six (6) times in any
twelve (12) month period.  In the event
that within fifteen (15) Trading Days following any Settlement Date, the
Company gives a Blackout Notice to the Investor and the VWAP on the Trading Day
immediately preceding such Blackout Period (“Old VWAP”) is greater than
the VWAP on the first Trading Day following such Blackout Period that the
Investor may sell its Registrable Securities pursuant to an effective Registration
Statement (“New VWAP”), then the Company shall pay to the Investor, by
wire transfer of immediately available funds to an account designated by the
Investor, the “Blackout Amount.”  For the
purposes of this Agreement, Blackout Amount means a percentage equal to the
product of (i) the number of Registrable Securities purchased by the
Investor pursuant to the most recent Draw Down and actually held by the
Investor immediately prior to the Blackout Period and (ii) the result, if
greater than zero, obtained by subtracting the New VWAP from the Old VWAP; provided,
however, that no Blackout Amount shall be payable in respect of
Registrable Securities (x) that are otherwise freely tradable by the
Investor, including under Rule 144, during the Blackout Period or (y) if
the Company offers to repurchase from the Investor such Registrable Securities
for a per share purchase price equal to the VWAP on the Trading Day immediately
preceding the day on which any such Blackout Period began.  For any Blackout Period in respect of which a
Blackout Amount becomes due and payable, rather than paying the Blackout
Amount, the Company may at is sole discretion, issue to the Investor shares of
Common Stock with an aggregate market value determined as of the first Trading
Day following such Blackout Period equal to the 


 

















 


Blackout Amount (“Blackout
Shares”); provided that the Investor may sell such Blackout Shares pursuant
to an effective Registration Statement.”


 


This Amendment
may be executed by the parties hereto in several counterparts, each of which
when executed and delivered shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.  Delivery of an executed counterpart of a signature
page to this Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.


 


THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.


 


Except as
expressly provided hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms.


 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.


 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BIOSANTE PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Phillip B. Donenberg

  
	
   

  	
   

  	
   

  	
  Phillip B. Donenberg

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer, Treasurer and
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  We confirm our agreement to the foregoing:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  KINGSBRIDGE CAPITAL LIMITED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ A R Gardner-Hillman

  	
   

  	
   

  
	
   

  	
  Antony Gardner-Hillman

  	
   

  	
   

  
	
   

  	
  Director