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EXHIBIT 10.54
AMENDMENT TO
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AGREEMENT BETWEEN EN PLC LIMITED PARTNERSHIP
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AND SELFCARE, INC.
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This Amendment to the Agreement Between EN PLC Limited Partnership and
Selfcare, Inc. ("Amendment") is entered into as of January 1, 1997, by and
between EN PLC Limited Partnership, a Delaware limited partnership ("EN PLC")
and Selfcare, Inc., a Delaware corporation ("Selfcare" or the "Company").
W I T N E S S E T H
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WHEREAS, the parties hereto entered into the Agreement Between EN PLC
Limited Partnership and Selfcare, Inc. dated as of October 17, 1996 (the
"Original Agreement") pursuant to which Selfcare agreed to purchase and EN PLC
agreed to sell 7,961,386 shares of Enviromed plc common stock for an aggregate
purchase price of $3,803,552 (the "Purchase Price");
WHEREAS, the payment of the Purchase Price by Selfcare was to be made
in the form of a two-year promissory note with a principal amount equal to the
Purchase Price and bearing interest per annum at a fluctuating rate equal to the
Bank of Boston's prime rate plus 1 1/2%, which note had not yet being issued as
of the date hereof;
WHEREAS, the parties hereto have agreed to amend the Original Agreement
to provide that the Company will defer certain payments of the Purchase Price
payable to EN PLC under the Original Agreement and, as consideration for such
deferral, the Company will issue to EN PLC a warrant to purchase shares of
Selfcare's common stock, par value $.001 per share (the "Common Stock").
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
SECTION 1. Promissory Notes. The parties hereto agree that the Purchase
Price shall be evidenced by two promissory notes issued by the Company to EN PLC
(the "Promissory Notes") with principal amounts of $2,772,789.40 and
$1,030,762.60 and in substantially the form attached hereto as Exhibit A and
Exhibit B, respectively.
SECTION 2. Warrant. In consideration of EN PLC's agreement to the terms
and conditions set forth in this Amendment, the Company will issue to EN PLC a
warrant, dated January 1, 1997 (the "Warrant") to purchase an aggregate of
15,401 shares of Common Stock in substantially the form attached hereto as
Exhibit C. The initial exercise price per share of Common Stock underlying the
Warrant shall be $12.875.
SECTION 3. Additional Warrant. As further consideration of EN PLC's
agreement to the terms and conditions set forth in this Amendment, if a portion
of the Payment Price remains unpaid as of June 30, 1997 and the Company has not
sold shares of Common Stock
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after the date hereof and on or before June 30, 1997 pursuant to a registration
statement on Form SB-2 (or a similar form), then the Company will issue to EN
PLC by July 15, 1997, an additional warrant, dated June 30, 1997 (the "Secondary
Warrant"), to purchase an aggregate of 7,702 shares of the Company's Common
Stock in substantially the form attached hereto as Exhibit B. The initial
exercise price per share of Common Stock underlying the Secondary Warrant shall
be $12.875. The aggregate number of shares and the exercise price of the
Secondary Warrant will be appropriately adjusted to reflect any adjustments
which would have been made if the Secondary Warrant had instead been issued on
January 1, 1997.
SECTION 4. Prepayment. Nothing contained in this Amendment shall
restrict the right of the Company to prepay part or all of the principal of
either of the Promissory Notes together with any accrued but unpaid interest
thereon at any time.
SECTION 5. Miscellaneous.
a. Transfer; Assignment. EN PLC shall not transfer or assign
any rights contained herein without the prior written consent of the
Company.
b. Confidentiality. EN PLC shall keep the contents of this
Amendment confidential and shall not disclose any information
contained herein in any manner whatsoever.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized representatives as of
the date first written above.
EN PLC LIMITED PARTNERSHIP
By: EN PLC, INC., its general partner
By: \s\▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇
President
SELFCARE, INC.
By: \s\▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice-President and Secretary
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EXHIBIT A
PROMISSORY NOTE
$2,772,789.40 Waltham, Massachusetts
January 1, 1997
FOR VALUE RECEIVED, the undersigned ("Debtor") hereby promises to pay
to EN PLC Limited Partnership ("Payee"), at such place or places as may be
specified by Payee or any holder hereof, in legal tender of the United States of
America, the principal amount of TWO MILLION SEVEN HUNDRED SEVENTY TWO THOUSAND
SEVEN HUNDRED EIGHTY-NINE DOLLARS AND FORTY CENTS ($2,772,789.40) (the
"Principal"), with interest at the rate per annum equal to the Bank of Boston's
Prime Rate plus 1 1/2% compounded annually, on the unpaid balance. Debtor hereby
promises to pay the Principal and interest thereon in accordance with the
following schedule:
Payment Date Payment Amount
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On each of January 17, April Accrued but unpaid interest for the period between
17, July 17, and October 17, the Payment Date and the previous Payment Date
1997
On January 17, 1998 $1,386,394.63 in Principal
On each of April $462,131.59 in Principal, plus any accrued but
17, July 17, and October 17, unpaid interest for the period between the Payment
1998 Date and the previous Payment Date
For purposes of Debtor's payment to Payee on January 17, 1997, accrued interest
shall be calculated for the period between October 17, 1996 and January 17,
1997.
Notwithstanding contained herein to the contrary, Debtor may discharge
the obligations undertaken hereby, at any time and from time to time, by
repaying the outstanding Principal, without premium or penalty. Debtor may,
without premium or penalty, make a partial prepayment of Principal and/or
interest in any amount at any time and may thereby reduce any required future
payment hereunder by the amount of such prepayment.
This Note is entered into pursuant to the terms of that certain
Agreement Between EN PLC Limited Partnership and Selfcare, Inc. dated October
17, 1996, as amended from time to time (the "Agreement"), and shall be subject
to the terms and conditions thereof. Debtor hereby assigns and pledges to Payee,
and hereby grants a security interest to Payee in the number of shares of common
stock of Enviromed, plc (the "Enviromed Shares") purchased by
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Debtor from Payee pursuant to the Agreement the purchase price of which equals
the Principal of this Note. The security interest granted in the Enviromed
Shares shall secure the payment to Payee of all obligations and liabilities of
Debtor now or hereafter existing under the Agreement or this Note such that
Payee shall have no recourse against the Debtor or any of its assets other than
the Enviromed Shares.
Debtor expressly waives presentment for payment, protest and demand,
notice of protest, demand and dishonor and expressly agrees that this Note may
be extended from time to time without in any way affecting the liability of
Debtor. No delay or omission on the part of Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other right under
this Note.
This Note may from time to time be extended by Payee, with or without
notice to Debtor, and any related right may be waived, exchanged, surrendered or
otherwise dealt with, all without affecting the liability of Debtor, in each
case in the sole discretion of Payee.
This Note may not be changed, modified or terminated orally, but only
by an agreement in writing and signed by the Debtor and Payee. This Note shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, and shall be binding upon the successors and assigns of Debtor
and inure to the benefit of Payee and its heirs, successors, endorsees and
assigns.
DEBTOR:
SELFCARE, INC.
By: \s\▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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EXHIBIT B
PROMISSORY NOTE
$1,030,762.60 Waltham, Massachusetts
January 1, 1997
FOR VALUE RECEIVED, the undersigned ("Debtor") hereby promises to pay
to EN PLC Limited Partnership ("Payee"), at such place or places as may be
specified by Payee or any holder hereof, in legal tender of the United States of
America, the principal amount of ONE MILLION THIRTY THOUSAND SEVEN HUNDRED
SIXTY-TWO DOLLARS AND SIXTY CENTS ($1,030,762.60) (the "Principal"), with
interest at the rate per annum equal to the Bank of Boston's Prime Rate plus 1
1/2%, compounded annually, on the unpaid balance. Debtor hereby promises to pay
the Principal and interest thereon in accordance with the following schedule:
Payment Date Payment Amount
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On each of January 17, April $85,896.85 in Principal, plus any accrued
17, July 17, and October 17, but unpaid interest for the period between
1997 the Payment Date and the previous Payment Date
On each of January 17, April $171,793.80 in Principal, plus any accrued but
17, July 17, and October 17, unpaid interest for the period between
1998 the Payment Date and the previous Payment Date
For purposes of Debtor's payment to Payee on January 17, 1997, accrued interest
shall be calculated for the period between October 17, 1996 and January 17,
1997.
Notwithstanding contained herein to the contrary, Debtor may discharge
the obligations undertaken hereby, at any time and from time to time, by
repaying the outstanding Principal, without premium or penalty. Debtor may,
without premium or penalty, make a partial prepayment of Principal and/or
interest in any amount at any time and may thereby reduce any required future
payment hereunder by the amount of such prepayment.
This Note is entered into pursuant to the terms of that certain
Agreement Between EN PLC Limited Partnership and Selfcare, Inc. dated October
17, 1996, as amended from time to time (the "Agreement"), and shall be subject
to the terms and conditions thereof. Debtor hereby assigns and pledges to Payee,
and hereby grants a security interest to Payee in the number of shares of common
stock of Enviromed, plc (the "Enviromed Shares") purchased by Debtor from Payee
pursuant to the Agreement the purchase price of which equals the Principal of
this Note. The security interest granted in the Enviromed Shares shall secure
the payment
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to Payee of all obligations and liabilities of Debtor now or hereafter existing
under the Agreement or this Note such that Payee shall have no recourse against
the Debtor or any of its assets other than the Enviromed Shares.
Debtor expressly waives presentment for payment, protest and demand,
notice of protest, demand and dishonor and expressly agrees that this Note may
be extended from time to time without in any way affecting the liability of
Debtor. No delay or omission on the part of Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other right under
this Note.
This Note may from time to time be extended by Payee, with or without
notice to Debtor, and any related right may be waived, exchanged, surrendered or
otherwise dealt with, all without affecting the liability of Debtor, in each
case in the sole discretion of Payee.
This Note may not be changed, modified or terminated orally, but only
by an agreement in writing and signed by the Debtor and Payee. This Note shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, and shall be binding upon the successors and assigns of Debtor
and inure to the benefit of Payee and its heirs, successors, endorsees and
assigns.
DEBTOR:
SELFCARE, INC.
By: \s\▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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