AGREEMENT AND AMENDMENT TO 15% SECURED CONVERTIBLE PROMISSORY NOTES DATED JANUARY 13, 2006 AND DATED JANUARY 22, 2007
EXHIBIT
4.1
AGREEMENT
AND AMENDMENT TO 15% SECURED CONVERTIBLE PROMISSORY NOTES DATED
JANUARY
13, 2006 AND DATED JANUARY 22, 2007
This
Agreement and Amendment is executed and delivered on this 27th day of July
2007
by and among Matritech, Inc. (the “Borrower”), the undersigned
holders of a majority of the outstanding principal amount of those certain
15%
Secured Convertible Promissory Notes issued by the Borrower on January 13,
2006
(the “Series A Notes”) pursuant to the Securities Purchase
Agreement, dated as of January 13, 2006, by and among the Borrower and the
purchasers party thereto (the “Series A Purchase Agreement”)
and the undersigned holders of a majority of the outstanding principal amount
of
those certain 15% Secured Convertible Promissory Notes issued by the Borrower
on
January 22, 2007 (the “Series B Notes”) pursuant to the
Securities Purchase Agreement, dated as of January 22, 2007, by and among the
Borrower and the purchasers party thereto (the “Series B Purchase
Agreement”). The undersigned holders of a majority of the
outstanding principal amount of the Series A Notes shall be referred to as
the
“Series A Majority Holders.” The
undersigned holders of a majority of the outstanding principal amount of the
Series B Notes shall be referred to as the “Series B
Majority Holders.” All
capitalized terms used in this Agreement and Amendment but not otherwise defined
herein shall have the meanings ascribed to such terms in the Series A Purchase
Agreement and the Series B Purchase Agreement, respectively.
WHEREAS,
the parties have determined that it is in the best interests of the Borrower
and
all the holders of the Series A Notes and all the holders of the Series B Notes
that the following agreements and amendments be made.
NOW,
THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. The
provisions of Article VIII.C(iii) of the Series A Notes and the Series B Notes
are hereby deleted in their entirety and replaced with the
following:
“(iii) redeem,
repurchase or otherwise acquire, or declare or pay any cash dividend or
distribution on, any securities of the Borrower, except (a) the Borrower may
redeem all outstanding warrants of the Borrower originally issued by the
Borrower on March 31, 2003 on such terms as its Board of Directors may
establish, (b) pursuant to any equity compensation plan approved by the
Borrower’s Board of Directors or (c) as expressly required by the terms of the
Series A Notes or the Series B Notes;”
5. Except
as expressly set forth herein, (a) the original terms and conditions of the
Series A Notes, as previously amended on January 22, 2007, shall remain in
full
force and effect; (b) this Agreement and Amendment shall not be deemed to be
a
waiver, amendment or modification of, or consent to or departure from, any
provision of the Series A Notes or to be a waiver of any Event of Default
whether arising before or after the date hereof as a result of the transactions
contemplated hereby; and (c) this Agreement and Amendment shall not preclude
the
future exercise of any right, remedy, power or privilege available to the
holders of the Series A Notes whether under the Series A
Notes
or
otherwise, and shall not be construed or deemed to be a satisfaction, novation,
cure, modification, amendment or release of the Series A Notes.
6.
Except
as
expressly set forth herein, (a) the original terms and conditions of the Series
B Notes shall remain in full force and effect; (b) this Agreement and Amendment
shall not be deemed to be a waiver, amendment or modification of, or consent
to
or departure from, any provision of the Series B Notes or to be a waiver of
any
Event of Default whether arising before or after the date hereof as a result
of
the transactions contemplated hereby; and (c) this Agreement and Amendment
shall
not preclude the future exercise of any right, remedy, power or privilege
available to the holders of the Series B Notes whether under the Series B Notes
or otherwise, and shall not be construed or deemed to be a satisfaction,
novation, cure, modification, amendment or release of the Series B
Notes.
7. This
Agreement and Amendment (a) constitutes the entire understanding of the parties
with respect to the subject matter hereof, and any other prior agreements,
whether written or oral, with respect hereto or thereto are expressly superseded
hereby; (b) shall be governed by and construed in accordance with the laws
of
the State of Delaware without regard to principles of conflicts of laws; and
(c)
shall be binding upon and inure to the benefit of the successors and assigns
of
the Borrower and all the holders of the Series A Notes and all the holders
of
the the Series B Notes.
7.
This
Agreement and Amendment may be executed in multiple counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and
the same instrument, and by facsimile transmission, which facsimile signatures
shall be considered original executed counterparts.
8.
All
references to the “Notes” in the Series A Purchase Agreement or any documents or
instruments executed by Borrower in connection therewith shall be deemed to
refer to the Series A Notes as the same have been amended through the date
hereof. All references to the “Notes” in the Series B Purchase
Agreement or any documents or instruments executed by Borrower in connection
therewith shall be deemed to refer to the Series B Notes as the same have been
amended through the date hereof.
9.
Each
holder of the Series A Notes is directed to attach this Agreement and Amendment
to its Series A Note, provided that the failure to so attach this
Agreement and Amendment to any Series A Note shall not affect in any way the
enforceability hereof or of any Series A Note. Each holder of the
Series B Notes is directed to attach this Agreement and Amendment to its Series
B Note, provided that the failure to so attach this Agreement and
Amendment to any Series B Note shall not affect in any way the enforceability
hereof or of any Series B Note.
10.
Any
provision of this Agreement and Amendment that is prohibited or unenforceable
in
any jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision
in
any other jurisdiction.
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11.
The
Borrower hereby represents and warrants to the Series A Majority Holders and
the
Series B Majority Holders as follows:
(a) Borrower
has the corporate power and authority to execute, deliver, and perform this
Agreement and Amendment and all such action has been duly and validly authorized
by all necessary corporate proceedings on its part.
(b) The
Series A Notes and the Series B Notes, as amended hereby, constitute the legal,
valid and binding agreements of the Borrower, enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors’
rights generally and by general principles of equity.
(c) The
Borrower has, and will have after giving effect to this Agreement and Amendment,
no claims, defenses or set-offs to its obligations under the Series A Notes
and
Series B Notes.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the undersigned Borrower and the Series A Majority Holders
and
the Series B Majority Holders have caused this Agreement and Amendment to be
executed as of the day first above written.
Borrower:
Matritech,
Inc.
By:
_____________________________
Name: Xxxxxxx
X.
Xxxxx
Title: Chief
Executive Officer
[Signature
Page to Agreement and Amendment]
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IN
WITNESS WHEREOF, the undersigned Borrower and the Series A Majority Holders
and
Series B Majority Holders have caused this Agreement and Amendment to be
executed as of the day first above written.
|
|
Holders:
|
SDS
Capital Group SPC, Ltd., on behalf of its Class D
segregated portfolio
By:
______________________________
Name:
Xxxxx Xxxxx
Title: Director
|
|
Series
A Notes Held:
$1,323,333 principal
|
|
|
Series
B Notes Held: $1,140,000 principal
|
ProMed
Partners, L.P.
By:
______________________________
Name: Xxxxx
X. Xxxxxx
Title: Managing
Director
|
|
Series
A Notes Held:
$131,476 principal
|
|
|
Series
B Notes Held:
$320,399 principal
|
ProMed
Partners II, L.P.
By:
______________________________
Name: Xxxxx
X. Xxxxxx
Title: Managing
Director
|
|
Series
B Notes Held:
$16,816 principal
|
ProMed
Offshore Fund, Ltd.
By:
______________________________
Name: Xxxxx
X. Xxxxxx
Title: Managing
Director
|
|
Series
A Notes Held: $22,539 principal
|
|
|
Series
B Notes Held:
$48,072 principal
|
[Signature
Page to Agreement and Amendment]
5
IN
WITNESS WHEREOF, the undersigned Borrower and the Series A Majority Holders
and
Series B Majority Holders have caused this Agreement and Amendment to be
executed as of the day first above written.
ProMed
Offshore Fund II, Ltd.
By:
______________________________
Name:
Xxxxx X. Xxxxxx
Title: Managing
Director
|
|
Series
A Notes Held:
$835,569 principal
|
|
|
Series
B Notes Held:
$414,713 principal
|
Xxxxx
X. Xxxxxx, Individually
_________________________________
|
|
Series
A Notes Held: $106,875 principal
|
|
|
Series
B Notes Held: $250,000 principal
|
H&Q
Life Science Investors
By:
______________________________
Name: Xxx
Xxxxxxx
Title: President
|
|
Series
A Notes Held:
$1,583,333 principal
|
|
|
Series
B Notes Held:
$1,000,000 principal
|
The
term
H&Q Life Sciences Investors is the designation of the Trustees for the time
being under a Declaration of Trust dated February 20, 1992, as amended, and
all
persons dealing with H&Q Life Sciences Investors must look solely to the
trust property for the enforcement of any claims against H&Q Life Sciences
Investors, and neither the Trustees, officers nor shareholders assume any
personal liability for the obligations entered into on behalf of H&Q Life
Sciences Investors.
[Signature
Page to Agreement and Amendment]
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