EXHIBIT 10.6
AMENDMENT TO DECEMBER 23, 2005 ORIGINAL ISSUE DISCOUNT SECURED CONVERTIBLE NOTES
TRANSACTION DOCUMENTS AGREEMENT
Agreement made this 11th day of January, 2006 ("Amendment") among
Xxxxxxx-Xxxxx Diagnostics, Inc., a Delaware corporation (the "Company"), and the
signators hereto who are Subscribers under a certain Subscription Agreement with
the Company dated December 23, 2005 ("Subscribers").
For good and valuable mutual consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. All capitalized terms herein shall have the meanings ascribed to them
in the Transaction Documents (as defined in the Subscription Agreement).
2. The Company and the Subscribers hereby agree to amend the Transaction
Documents to reflect the addition of Osher Capital Inc. as Subscriber ("New
Subscriber") in connection with the additional Purchase Price ("Additional
Purchase Price") to be paid by New Subscriber as set forth on Schedule A hereto.
Purchase Price shall mean the aggregate of the Purchase Price in connection with
the December 23, 2005 Closing Date and the Additional Purchase Price.
3. The Company and Subscriber hereby agree to waive any disproportionality
between the Purchase Price of the December 23, 2005 Closing Date and the
Additional Purchase Price.
4. Subscribers further agree to accelerate a funding of an aggregate of
$60,000 of the Third Closing Purchase Price in the amounts set forth on the
signature page hereto to be included in the Second Closing.
5. The Second Closing shall take place on or before January 15, 2006 (the
"Second Closing Date") in connection with the Additional Purchase Price and the
Notes and Warrants issuable in connection therewith, upon satisfaction of all
conditions to Closing set forth in the Transaction Documents and in this
Amendment. The amount of the Additional Purchase Price and all documents to be
delivered hereunder will be deposited and held with the Escrow Agent and
released pursuant to the Escrow Agreement except that the Escrowed Payment shall
not be released until immediately following the filing of the Registration
Statement ("Release Date"). Ten Thousand Dollars ($10,000) of the Purchase Price
shall be released to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP for legal fees in
connection with the filing of the Registration Statement. If the Registration
Statement is not timely filed by the Filing Date as described in the
Subscription Agreement, this Amendment shall be null and void at the option of a
majority of the Subscribers and New Subscriber compromising the Additional
Price. (For this purpose, majority shall mean 66% of the Subscribers and New
Subscriber compromising the Additional Purchase Price). The Notes and Warrants
to be delivered on the Second Closing Date are included in the definition of
"Securities" in the Subscription Agreement.
6. All the representations, warranties and undertakings made by the
Company in the Transaction Documents as of the Closing Date are hereby made by
the Company as of the Second Closing Date, as if such representations,
warranties and undertakings were also made and given on the Second Closing Date.
7. All the representations, warranties and undertakings made by the
Subscribers contained in the Transaction Documents as of the Closing Date are
hereby made by the Subscribers and New Subscriber as of the Second Closing Date,
as if such representations, warranties and undertakings were also made and given
on the Second Closing Date.
8. The New Subscriber acknowledges and agrees that by signing this
Amendment, it will be bound by all of the terms and conditions of the
Transaction Documents.
9. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Company as of and for the Second
Closing Date.
10. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Subscribers as of and for the
Second Closing Date.
11. All of the terms and conditions described in Section 2 of the
Subscription Agreement in reference to the Second and Third Closing shall apply
to the Second Closing, as if such representations and warranties were made and
given on all such dates.
12. On or before the Second Closing Date, the Company will deliver to the
Subscriber and New Subscriber, Notes, and Warrants issued as of the Second
Closing Date in the amounts set forth on Schedule A hereto in connection with
the Additional Purchase Price which the Subscriber and New Subscriber will
deposit with the Escrow Agent on or before the Second Closing Date.
13. The Maturity Date of the Notes to be issued on the Second Closing Date
will be the same as the Maturity Date of the Notes issued on the Closing Date.
14. The Warrants to be issued on the Second Closing Date will be identical
to the Warrants issued on the Closing Date except as to the Issue Date and
Expiration Date.
15. On or before the Second Closing Date, the Company will deliver to the
Subscribers and New Subscribers the legal opinion described in Section 6 of the
Subscription Agreement in relation to the Second Closing, Additional Purchase
Price, Notes, and Warrants to be delivered on the Second Closing Date, which
opinion will be substantively identical to the legal opinion delivered in
connection with the Closing.
16. The attorney for the Subscriber and New Subscriber will receive
additional Legal Fees from the Company of $2,500 which will be payable on the
Release Date out of the Escrowed Payment (as defined in the Escrow Agreement).
17. The signators hereto acknowledge and agree that the Security Agreement
executed by the Company and Subscriber relate to the Additional Purchase Price
as if such Additional Purchase Price had been paid and released to the Company
on the December 23, 2005 Closing Date and shall also include the New Subscriber
as parties to those agreements as if such New Subscriber had been parties to
those agreements as of the December 23, 2005 Closing Date.
18. The undersigned waive the rights granted to them pursuant to Section
12(a) (Right of First Refusal), Section 12(b) (Offering Restrictions), and
Section 12(c) (Favored Nation Provision) of the Subscription Agreement only to
the extent such rights relate to the aggregate investment of $12,000 by the New
Subscriber.
19. The undersigned consent to the amendment of all Schedules, Exhibits
and documents including but not limited to the Security Agreement to include the
New Subscriber as a party thereto and authorize the Escrow Agent to make
additional filings at the discretion of the Escrow Agent to memorialize the
security interest to be granted to the New Subscriber
20. All other terms of the Transaction Documents shall remain in full
force and effect and govern this Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first written above.
"COMPANY" "THE ESCROW AGENT"
XXXXXXX-XXXXX DIAGNOSTICS, INC. GRUSHKO & XXXXXXX, P.C.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Its: Chief Executive Officer
"SUBSCRIBERS":
-------------------------------------- ------------------------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT OSHER CAPITAL, INC.
SCHEDULE A TO AMENDMENT
------------------------------------------ ------------------- --------------------- ------------------ -------------------
SUBSCRIBER INITIAL CLOSING ADDITIONAL PURCHASE SECOND CLOSING PAYMENT AFTER
PURCHASE PRICE PRICE PURCHASE PRICE ORIGINAL ISSUE
------------------------------------------ ------------------- --------------------- ------------------ -------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT $132,000.00 -0- $120,000.00 $100,000.00
Xxxxxxxxx 0
0000 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxxxx
Fax: 000-00-00000000
------------------------------------------ ------------------- --------------------- ------------------ -------------------
OSHER CAPITAL INC. -0- $12,000.00 -0- $10,000.00
0 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------ ------------------- --------------------- ------------------ -------------------
