AMENDMENT TO PLEDGE AND ESCROW AGREEMENT
EXHIBIT
10.4
AMENDMENT
TO PLEDGE AND ESCROW AGREEMENT
THIS AMENDMENT TO THE PLEDGE AND ESCROW
AGREEMENT (this “Amendment”) is made as of April 22, 2008, by and among
Xxxxxxxxxx Equity Partners Ltd. (“Xxxxxxxxxx”), InVeritas Medical Diagnostics,
Inc. (the “Company”) and Xxxxx Xxxxxxxx, Esq., as escrow agent (the "Escrow
Agent").
W I T N E
S S E T H T H A T:
WHEREAS, Triumph Small Cap Fund, Inc.
(“Triumph”) and Xxxxxxxxxx entered into a Purchase and Assignment Agreement
dated as of December 18, 2007 (the “Assignment Agreement”) pursuant to which
Xxxxxxxxxx agreed to conditionally assign, transfer and sell its rights as a
holder of certain 18% Secured Convertible Debentures (the “Debentures”) under
(a) the Securities Purchase Agreement between Xxxxxxxxxx and InVeritas Medical
Diagnostics, Inc. (“InVeritas”) dated as of September 7, 2005, (b) the Investor
Registration Rights Agreement, dated September 7, 2005, between InVeritas and
Xxxxxxxxxx (the "Registration Rights
Agreement"), (c) the Security Agreement, dated September 7, 2005, between
InVeritas and Xxxxxxxxxx (“Security Agreement”),
(d) the Pledge and Escrow Agreement dated September 7, 2005, by and among
InVeritas, Xxxxxxxxxx and Xxxxx Xxxxxxxx (the “Pledge Agreement”)
(collectively, the "Transaction
Documents");
WHEREAS, the Assignment Agreement
provided that in the event that the closing of that certain Stock Purchase
Agreement among the Company and Medical Diagnostic Innovations Ltd, dated
December 18, 2007 (the “Stock Purchase Agreement”) was not consummated on or
before February 16, 2008, the Assignment Agreement would become null and
void;
WHEREAS, Triumph, as the assignee of
Xxxxxxxxxx, on December 18, 2007, declared an event of default under the
Debentures and the Pledge Agreement, as such term is defined, in the Pledge
Agreement were declared to be issued and outstanding shares of the
Company.
WHEREAS, the closing of the Stock
Purchase Agreement did not occur on or before February 16, 2008 and
consequently, the Assignment Agreement, and Triumph’s declaration of an event of
default, became null and void.
WHEREAS, the parties hereto wish to
have the Pledged Shares deposited into escrow to be held in accordance with the
terms of the Pledge Agreement.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements herein contained, the parties
hereto covenant and agree as follows:
1. Concurrently
with the execution and delivery of this Amendment, the Pledged Shares shall be
delivered to the Escrow Agent and held pursuant to the terms and conditions of
the Pledge Agreement.
2. As
amended hereby, the Pledge Agreement shall remain in full force and
effect.
1
3. The
validity, interpretation and performance of this Amendment shall be determined
in accordance with the laws of the State of New Jersey applicable to contracts
made and to be performed wholly within that state except to the extent that
Federal law applies. The parties hereto agree that any disputes,
claims, disagreements, lawsuits, actions or controversies of any type or nature
whatsoever that, directly or indirectly, arise from or relate to this Amendment,
including, without limitation, claims relating to the inducement, construction,
performance or termination of this Amendment, shall be brought in the state
superior courts located in Xxxxxx County, New Jersey or Federal district courts
located in Newark, New Jersey, and the parties hereto agree not to challenge the
selection of that venue in any such proceeding for any reason, including,
without limitation, on the grounds that such venue is an inconvenient
forum. The parties hereto specifically agree that service of process
may be made, and such service of process shall be effective if made, pursuant to
Section 8 hereto.
4. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute the same
instrument.
[Signature
page follows.]
2
IN WITNESS WHEREOF, the
parties hereto have duly executed this Amendment to the Pledge and Escrow
Amendment as of the date first above written.
Xxxxxxxxxx
Equity Partners, L.P.
By Yorkville Advisors LLC
Its Investment
Manager
|
|||
|
|||
By:
|
/s/ Xxxxx Xxxxxxxx | ||
Name: Xxxxx
Xxxxxxxx
|
|||
Title:
Member
|
|||
InVeritas Medical Diagnostics, Inc. | |||
|
By:
|
/s/ Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Chief Financial Officer | |||
/s/ Xxxxx Xxxxxxxx | |||
Name:
Xxxxx Xxxxxxxx, Esq.
|
|||
3