EXHIBIT 4.9
SALIVA DIAGNOSTICS SYSTEMS, INC.
00000 XX 00XX XXXXXX
XXXXXXXXX, XX 00000
TEL: 360/000-0000
FAX: 360/000-0000
May 28, 1997
Tail Wind Fund Ltd.
Xxxxxx Xxxxxxx
c/o Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This letter will confirm that, notwithstanding anything to the
contrary contained in that certain Convertible Securities Subscription Agreement
dated as of March 12, 1997 (the "Subscription Agreement") and that certain 7.5%
Convertible Debenture referenced in the Subscription Agreement (the "Debenture")
the Tail Wind Fund Ltd. and Xxxxxx Xxxxxxx, on or prior to June 5, 1997 shall
convert to common stock in one or more transactions a minimum of $800,000 of
principal amount of Debentures pursuant to the conversion terms and conditions
set forth in the Subscription Agreement and the Debenture (the "Early
Conversions"). The shares received upon the Early Conversions shall be defined
as the Early Conversion Shares. Each of you shall further be entitled to shares
of common stock of the Company in addition to the Early Conversion Shares if,
during any single five day period designated by each of you (no more than one
time) in writing to us, during the 120 day period succeeding the later of (a)
the last date of the Early Conversions, or (b) the date upon which the
Registration Statement referenced in the Subscription Agreement is declared
effective, the Conversion Price as defined in the Debenture, on the day after
the end of such designated five-day period (the "Additional Share Conversion
Price") would be less than the Conversion Price attributable to such Early
Conversions. The number of such additional shares to be issued to you shall be
the difference between (i) the number of shares which would have been issued
upon conversion of the Early Conversion amount at the Additional Share
Conversion Price, and (ii) the number of Early Conversion Shares. All such
additional shares shall be subject to the registration rights provided in the
Registration Rights Agreement described in the Subscription Agreement.
In consideration of the Company's agreement to issue the
additional shares as herein provided, each of you agrees not to sell, commit to
sell or otherwise transfer any of the Early Conversion Shares and additional
shares (collectively the "Early Conversion Shares") except as follows: (a) up to
one-third of the Early Conversion Shares at any time from and after
Tail Wind Fund Ltd.
May 28, 1997
Page 2
June 12, 1997; (b) up to an aggregate of two-thirds of the Early Conversion
Shares at any time from and after July 12, 1997; and (c) up to an aggregate of
100% of the Early Conversion Shares at any time from and after August 12, 1997.
Section 3.1(a) of the Debentures is hereby amended to provide
that 100% of the Debentures are convertible immediately. Except as otherwise
herein provided, all of the other terms and provisions of the Subscription
Agreement and all documents referenced therein shall remain in full force and
effect (including, without limitation, any penalties which may result from
failure to register the shares receivable upon conversion of the Debenture
within the time frames set forth in the documents).
If the foregoing correctly sets forth our understanding,
please execute this agreement in the lower left hand side whereupon it shall
become a binding agreement.
Sincerely,
Saliva Diagnostic Systems, Inc.
By: /s/ Xxxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx, President
Agreed and accepted:
The Tail Wind Fund Ltd.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
