AMENDMENT TO TRANSACTION DOCUMENTS
Exhibit
10.1
This AMENDMENT TO TRANSACTION
DOCUMENTS (this “Amendment”) is made as of the 28th day of April 2009, by
and between URIGEN
PHARMACEUTICALS, INC., a Delaware corporation with its principal place of
business at 00 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the
“Borrower”), Urigen N.A., Inc., a Delaware corporation with its principal place
of business at 00 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 (the
“Guarantor”), and
PLATINUM-MONTAUR LIFE SCIENCES, LLC, a Delaware limited liability company
(the “Lender”).
WHEREAS, the Lender and the
Borrower previously entered into a Note Purchase Agreement, dated as of January
9, 2009 (the “Purchase Agreement”), which provided for the issuance to the
Lender of a Senior Secured Convertible Promissory Note as set forth therein (the
“Original Note”), and the parties have executed certain documents and
instruments in connection therewith;
WHEREAS, the Guarantor
guaranteed the obligations of the Borrower pursuant to the Guaranty, dated as of
January 9, 2009, delivered to the Lender (the “Guaranty”);
WHEREAS, the Borrower’s
obligations under the Original Note, and the Guarantor’s obligations under the
Guaranty, are secured pursuant to the Security Agreement (the “Security
Agreement”), dated as of January 9, 2009, among the parties hereto, and the
Patent, Trademark and Copyright Security Agreement (the “IP Security
Agreement”), dated January 9, 2009, among the parties hereto; and
WHEREAS, the Borrower has
requested that the Lender extend additional credit in the form of an additional
Senior Secured Convertible Promissory Note, in the principal amount of $40,000
(the “New Note”), in substantially the form attached hereto.
NOW, THEREFORE, in
consideration of the foregoing and for the covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
SECTION ONE
DEFINITIONS;
REPRESENTATIONS
Section 1.1 Terms Defined. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
given to such terms in the Purchase Agreement.
Section
1.2 Representations and Warranties of
Borrower.The Borrower and the Guarantor represent and warrant
to the Lender as follows:
(a) Except
as otherwise set forth herein or in the Schedules and Exhibits hereto, the
representations and warranties of the Borrower and the Guarantor made in the
Transaction Documents remain true, complete and accurate in all material
respects, and the covenants of the Borrower and the Guarantor are hereby
reaffirmed, as of the date hereof.
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(b) The
Borrower and the Guarantor has each performed, in all material respects, all
obligations to be performed by it to date under the Transaction Documents and no
default or Event of Default exists thereunder or an event that with the passage
of time or giving of notice or both, would constitute a default or an Event of
Default.
(c) Each
of the Borrower and the Guarantor is a corporation duly organized, qualified,
and existing in good standing under the laws of the State of Delaware and has
full power and authority to consummate the transactions contemplated
hereby. The Borrower and the Guarantor are each duly qualified to do
business in all states and other jurisdictions in which the character of the
property owned by it or the nature of its activities causes such qualification
to be necessary.
(d) The
execution, delivery and performance of this Amendment has been duly authorized
by all necessary corporate actions of each of the Borrower and the Guarantor,
are within the corporate power of Borrower and the Guarantor and are not in
contravention of law, the Borrower’s or the Guarantor’s Articles of
Incorporation, By-laws or the terms of any other documents, agreements or
undertakings to which the Borrower or the Guarantor is a party or by which the
Borrower or the Guarantor is bound. No approval of any person,
corporation, governmental body or other entity is a prerequisite to the
execution, delivery and performance by the Borrower and the Guarantor of this
Amendment to ensure the validity or enforceability hereof.
(e) This
Amendment will constitute the legally binding obligation of Borrower and the
Guarantor, enforceable in accordance with its terms, subject to the effect of
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws now existing or hereafter enacted relating to or affecting the enforcement
of creditors’ rights generally, and as enforceability may be subject to
limitations based on general principles of equity (regardless of whether such
enforceability is considered a proceeding in equity or at law).
SECTION TWO
AMENDMENTS
The
Lender, the Borrower and the Guarantor have agreed to amend certain provisions
of the Purchase Agreement and the other Transaction Documents as set
forth herein.
Section
2.1 References in Purchase
Agreement. The parties hereto agree that (i) the term “Notes”
in the Purchase Agreement shall be deemed to include within its meaning the New
Note, (ii) the term “Conversion Shares” in the Purchase Agreement shall be
deemed to include within its meaning the shares of Common Stock issuable upon
conversion of the New Note, and (iii) the term “Transaction Documents” in the
Purchase Agreement shall be deemed to include within its meaning the New
Note.
Section
2.2 References in the Original
Note. The parties hereto agree that all references to the “Other
Notes” in the Original Note shall mean and include the New Note.
Section
2.3 The Guaranty. The
Guarantor hereby acknowledges and agrees that the “Obligations”, as defined in
the Guaranty, include all obligations of the Borrower under the New
Note.
Section
2.4 Security
Documents. The Borrower and the Guarantor intend that the
obligations under the New Note be secured by the collateral securing the
obligations under the Original Note, including pursuant to the Security
Agreement and the IP Security Agreement. In connection therewith, the
parties hereto agree that (i) the term “Notes” in the Security Agreement shall
be deemed to include within its meaning the New Note, (ii) the term
“Obligations” in the Security Agreement shall be deemed to include within its
meaning all obligations of the Borrower under the Note and the Guarantor under
the Guaranty (as amended hereby) and (iii) the term “Obligations” in the IP
Security Agreement shall be deemed to include within its meaning all obligations
of the Borrower under the New Note and the Guarantor under the
Guaranty.
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SECTION THREE
CLOSING CONDITIONS
Section
3.1 Closing
Conditions. The obligations of the Lender hereunder are
subject to fulfillment of the following conditions precedent:
(A) Amendment
Documents. The Borrower shall execute and deliver to the
Lender this Amendment and all other Amendment Documents (as defined below)
applicable to it.
(B) Corporation
Resolutions. The Lender shall have received a copy, certified
by the Secretary of the Borrower and the Guarantor, of a resolution of the Board
of Directors of the Borrower and the Guarantor authorizing the execution,
delivery and performance of this Amendment and each of the documents to be
executed by the Borrower and the Guarantor in connection with this Amendment
(the “Amendment Documents”), including the New Note.
(C) Instruments. All
instruments and documents whose execution and delivery are required or
contemplated by this Amendment and such other and further instruments and
documents as the Lender may reasonably require shall have been duly executed and
delivered in form and in substance reasonably satisfactory to the Lender,
including the New Note.
(D) Closing
Expenses. The Borrower shall pay all closing expenses,
including reasonable attorneys’ fees, filing fees and recording fees, reasonably
incurred by the Lender in connection with this Amendment and the other Amendment
Documents.
Section
3.2 Funding. Upon
satisfaction of the conditions set forth in Section 3.1 above, the Lender shall
purchase the New Note for the cash consideration of $40,000. The
Closing hereunder shall take place at the offices of the Lender at 000 Xxxx
00xx
Xxxxxx, Xxx Xxxx, XX.
SECTION FOUR
MISCELLANEOUS
Section
4.1 Transaction Documents. The
Borrower shall deliver this Amendment, and all other Amendment Documents to the
Lender, and these documents shall be included in the term “Transaction
Documents” in the Purchase Agreement.
Section
4.2 Future
References. All references to the Purchase Agreement and the
other Transaction Documents shall hereinafter refer to such agreement as amended
hereby.
Section
4.3 Continuing
Effect. The provisions of the Transaction Documents, as
modified herein, shall remain in full force and effect in accordance with their
terms and are hereby ratified and confirmed. The Lender does not in
any way waive the Borrower’s or the Guarantor’s obligations to comply with any
of the provisions, covenants and terms of the Purchase Agreement and the other
Transaction Documents, nor does the Lender waive any other right the Lender may
have at law or in equity.
Section
4.4 Expenses. Borrower
agrees, regardless of whether or not the transactions contemplated hereby shall
be consummated, to pay all reasonable expenses incurred by the Lender incident
to such transactions in the preparation of documentation relating thereto,
including all fees and disbursements of the counsel to the Lender, for services
to the Lender.
Section
4.5 General. Borrower
and the Guarantor shall execute and deliver such additional documents and do
such other acts as the Lender may reasonably require to implement the intent of
this Amendment fully. This Amendment may be executed in several
counterparts by the Borrowers and the Lender, each of which shall be deemed an
original but all of which together shall constitute one and the same
Amendment. This Amendment shall be governed by the laws of the State
of New York, without regards to the conflict of law provisions
thereof.
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IN WITNESS WHEREOF, the
undersigned have caused this Amendment to the Purchase Agreement to be executed
as of the date first above written.
| BORROWER: | |||
| URIGEN PHARMACEUTICALS, INC. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: CEO | |||
| GUARANTOR: | |||
| URIGEN N.A., INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: CFO | |||
| LENDER: | |||
|
PLATINUM-MONTAUR
LIFE SCIENCES, LLC
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: Portfolio Manager | |||
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EXHIBITS/ATTACHMENTS
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