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EXHIBIT 4.23
AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This Amendment to the Registration Rights Agreement dated as of
January 26, 1998 (the "Agreement") is made and entered into as of July 30, 1998
by and between Saliva Diagnostic Systems, Inc. (the "Company") and Biscount
Overseas Limited (the "Investor"). All capitalized terms used herein and not
defined shall have the respective meanings assigned to them in the Agreement.
RECITALS
A. Pursuant to the Agreement, the Company agreed to provide
certain registration rights under the Securities Act of 1933, as amended, with
respect to the shares of Common Stock issuable upon conversion of the Company's
Preferred Stock and Warrants, which were issued and sold to the Investor
pursuant to a Securities Purchase Agreement dated as of January 26, 1998 by and
between the Company and the Investor (the "Purchase Agreement").
B. Simultaneously with the execution of this Amendment, the
Company and the Investor have executed an Amendment to the Purchase Agreement to
modify certain terms relating to the Preferred Stock.
C. The Company and the Investor desire to amend the Agreement to
reflect the modifications to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Section 2(a). Section 2(a) of the Agreement is hereby deleted and
the following inserted in its stead:
(a) MANDATORY REGISTRATION. The Company shall prepare and
file with the SEC as soon as possible after the applicable Closing
Date but no later than thirty (30) days following each of the First
Closing Date and the First Additional Closing Date, a Registration
Statement or amendment to an existing registration statement on Form
SB-2 (or other form for which the Company is eligible at such time)
registering for resale by the Investor (i) 150% of the number of
shares of Common Stock issuable at conversion as may be required to
satisfy the conversion rights of the Investor pursuant to the terms
and conditions of the Preferred Stock, and (ii) 100% of the number
of shares of Common Stock issuable upon exercise as may be required
to satisfy the exercise rights of the Investor pursuant to the terms
and conditions of the Warrants (or such lesser number as may be
required by the SEC). Such Registration Statement or amendment shall
state that, in accordance with Rule 416 and 457 under the Securities
Act, it also
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covers such indeterminate number of additional shares of Common
Stock as may become issuable upon conversion of the Preferred Stock
and the exercise of the Warrants resulting from adjustment in the
Conversion Price or the Warrant exercise price, as the case may be,
or to prevent dilution resulting from stock splits or stock
dividends.
The Company will use its reasonable best efforts to cause
such Registration Statement to be declared effective not later
than ninety (90) days after the applicable Closing Date. If at any
time the number of shares of Common Stock into which the Preferred
Stock may be converted and which would be issued upon exercise of
the Warrants exceeds the aggregate number of shares of Common Stock
then registered, the Company shall, within ten (10) business days
after receipt of a written notice from the Investor, either (i)
amend the Registration Statement filed by the Company pursuant to
the preceding sentence, if such Registration Statement has not been
declared effective by the SEC, or (ii) file an additional
registration statement with the SEC, if the Registration Statement
has been declared effective by the SEC, to register the additional
shares.
2. Section 2(b)(i). Section 2(b)(i) of the Agreement is hereby
deleted and the following inserted in its stead:
(i) If the Registration Statement covering the
Registrable Securities is not filed in proper for with the SEC
within thirty (30) days after the applicable Closing Date (the
"Required Filing Date"), the Company will make payment to the
Investor in such amounts and at such times as shall be determined
pursuant to this Section 2(b).
3. Section 2(b)(ii). Section 2(b)(ii) of the Agreement is hereby
deleted and the following inserted in its stead:
(ii) If the Registration Statement covering the
Registrable Securities is not effective within ninety (90) days
following the applicable Closing Date (the "Required Effective
Date") or after a Suspension Period (defined below), then the
Company will make payments to the Investor in such amounts and at
such times as shall be determined pursuant to this Section 2(b);
provided, however, that the Company shall not be required to request
that the Registration Statement be declared effective if such
Registration Statement contains information required to be disclosed
in a 1934 Act report not yet filed by the Company (in which case
"Required Effective Date" shall mean the day after the filing of the
1934 Act report).
4. The Agreement and this Amendment shall be read together and shall
have the same effect as if the provisions of the Agreement and this Amendment
were contained in one document. Except as amended by this Amendment, the
Agreement shall remain in full force and effect.
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5. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware for contracts to be wholly performed in
such state and without giving effect to the principles thereof regarding the
conflict of laws.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Amendment, once executed by and bearing the signature of a
party, may be delivered to the other party hereto by facsimile transmission.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
the Agreement as of the date first above written.
SALIVA DIAGNOSTIC SYSTEMS, INC.
/s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: President and Chief Executive Officer
BISCOUNT OVERSEAS LIMITED
/s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
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