AGREEMENT AND AMENDMENT OF CERTAIN OF THE 15% SECURED CONVERTIBLE PROMISSORY NOTES DATED JANUARY 13, 2006 AND DATED JANUARY 22, 2007
EXHIBIT
4.6
AGREEMENT
AND AMENDMENT OF CERTAIN OF THE 15% SECURED
CONVERTIBLE
PROMISSORY NOTES DATED JANUARY 13, 2006 AND DATED
JANUARY
22, 2007
This
Agreement and Amendment is executed and delivered on this 31st day of August
2007 by and among Matritech, Inc. (the “Borrower”) and the
undersigned holders of (i) 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
and
previously amended on January 22, 2007, July 27, 2007 and August 30, 2007 (the
“Series A Purchase Agreement”); and (ii) 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 and previously amended on July 27, 2007 and August
30,
2007 (the “Series B Purchase Agreement”). The
undersigned holders of the Series A Notes shall be referred to as the
“Series A Holders.” The undersigned holders of the
Series B Notes shall be referred to as the “Series B
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 Borrower will enter into an Asset Purchase Agreement (the “Asset
Purchase Agreement”), by and among Inverness Medical Innovations, Inc.
(“Inverness”), Milano Acquisition Corp., and the Borrower,
dated on or around the date hereof, under which the Borrower will agree to
sell
substantially all of its assets to Milano Acquisition Corp., in exchange for
an
initial payment of shares of Inverness common stock valued at approximately
$36
million (the “Inverness Shares”); and
WHEREAS,
after the closing under the Asset Purchase Agreement (the “Asset
Purchase Closing”), the Borrower intends to resell the Inverness Shares
under a Form S-3 registration statement as soon as reasonably practicable in
order to repay the amounts owed under the Series A Notes and the Series B Notes
and to satisfy the Borrower’s other obligations.
NOW,
THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. This
Agreement and Amendment shall amend only the outstanding Series A Notes held
by
the undersigned Series A Holders and shall amend only the outstanding Series
B
Notes held by the undersigned Series B Holders. No holder of a Series
A Note or a Series B Note who is not a signatory to this Agreement and Amendment
shall be bound by, or receive the benefits of, this Agreement and
Amendment. No holder of both Series A Notes and Series B Notes may be
a signatory to this Agreement and Amendment except to the extent the Agreement
and Amendment is signed by such holder in its capacity as a holder of both
the
Series A Notes and the Series B Notes.
1
2. Each
of the undersigned holders of Series A Notes and Series B Notes hereby agrees
to
not issue a Default Notice (as defined in the Series A Notes and the Series
B
Notes) for (a) any Event of Default occurring under Article VI.A(viii)(a) with
respect to the consummation of the Asset Purchase Closing, (b) any Event of
Default occurring under Article VI.A(i) with respect to non-payment of any
Principal, Interest or other payment due or (c) any Event of Default occurring
under Article VI.A(viii)(c) with respect to any failure to pay the holders
of,
or allowing an Event of Default to exist under, the Series A or Series B Notes
or the Borrower’s Series A Convertible Preferred Stock until ten (10) business
days after the later of (x) a Registration Statement on Form S-3 which registers
the Inverness Shares for resale by the Borrower is declared effective by the
Securities and Exchange Commission or (y) the date of the Asset Purchase Closing
(collectively the “Payment Trigger Events”); provided, however,
that the Holder need not forbear on issuance of a Default Notice for more than
ninety (90) days after the date of the Asset Purchase Closing. If any
of the undersigned holders of the Series A Notes or the Series B Notes delivers
a Default Notice to the Borrower before the later of the Payment Trigger Events,
the Default Notice shall not be considered received by the Borrower until the
later of such Payment Trigger Events.
3. In
consideration for the agreement of the undersigned Series A Holders to forbear
an issuance of a Default Notice and triggering a payment of the Default Amount
(as defined in the Series A Notes), the Borrower agrees that, notwithstanding
the date of payment in full to the undersigned Series A Holders of amounts
due
to them under the Series A Notes, the Borrower shall be obligated to pay the
prepayment premium set forth in Article I.C of the Series A Notes as part of
the
payment in full due to the undersigned Series A Holders on the Series A Notes;
provided, however, that the undersigned Series A Holders shall
not under any circumstances become entitled to receive both the Default Amount
and the prepayment premium.
4. In
consideration for the agreement of the undersigned Series B Holders to forbear
on issuance of a Default Notice and triggering a payment of the Default Amount
(as defined in the Series B Notes), the Borrower agrees that, notwithstanding
the date of payment in full to the undersigned Series B Holders of amounts
due
to them under the Series B Notes, the Borrower shall be obligated to pay the
prepayment premium set forth in Article I.C of the Series B Notes as part of
the
payment in full due to the undersigned Series B Holders on the Series B Notes;
provided, however, that the undersigned Series B Holders shall
not under any circumstances become entitled to receive both the Default Amount
and the prepayment premium.
5.
In
further consideration for the agreement of the undersigned Series B Holders
to
forbear on issuance of a Default Notice and triggering a payment of the Default
Amount (as defined in the Series B Notes), the Borrower and the undersigned
Series B Holders agree that:
(a) the
last clause of Article VI.B of the Series B Notes held by the undersigned Series
B Holders is hereby deleted in its entirety and replaced with the
following:
“
‘R’
means
one hundred and twenty-five
percent (125%)”.
2
(b) a
new Article VI.D. is added to the Series B Notes held by the undersigned Series
B Holders as follows:
“D.
Accord with Prepayment Premium Provisions. For the avoidance of
doubt, if an Event of Default (as defined herein) were to occur and the Borrower
were then to be required to pay the Holder the Default Amount, then the Borrower
shall be relieved of any obligation to pay the Holder the Prepayment Premium
described in Article I.C of this Note.”
6. Except
as expressly set forth herein, (a) the original terms and conditions of the
Series A Notes, as previously amended on January 22, 2007 and July 27, 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 undersigned Series A Holders 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.
7. Except
as expressly set forth herein, (a) the original terms and conditions of the
Series B Notes, as previously amended on July 27, 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 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
undersigned Series B Holders 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.
8. 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 the undersigned Series A Holders and the undersigned Series
B
Holders.
9. This
Agreement and Amendment may be executed in multiple counterparts, each of which
shall be deemed an original (but as to each undersigned Holder such counterparts
shall constitute one and the same instrument), and by facsimile transmission,
which facsimile signatures shall be considered original executed
counterparts.
[Remainder
of Page Intentionally Left Blank]
3
IN
WITNESS WHEREOF, the undersigned Borrower and the undersigned Series A Holders
and the Series B Holders have caused this Agreement and Amendment to be executed
as of the day first above written.
Borrower:
Matritech,
Inc.
By:
/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Chief
Executive Officer
IN
WITNESS WHEREOF, the undersigned Borrower and the undersigned Series A Holders
and Series B Holders have caused this Agreement and Amendment to be executed
as
of the day first above written.
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Holders:
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SDS
Capital Group SPC, Ltd., on behalf of its Class D
segregated portfolio
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By:
/s/ ▇▇▇▇▇
Derby_____________________
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Name: ▇▇▇▇▇
▇▇▇▇▇
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Title:
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Director
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Series
A Notes Held: $1,323,333 principal
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Series
B Notes Held: $1,140,000 principal
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ProMed
Partners, L.P.
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By:
/s/ ▇▇▇▇▇ ▇.
Musket__________________
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Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Managing
Director
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Series
A Notes Held: $131,476 principal
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Series
B Notes Held: $320,399 principal
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ProMed
Partners II, L.P.
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By:
/s/ ▇▇▇▇▇ ▇.
Musket___________________
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Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Managing
Director
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Series
B Notes Held: $16,816 principal
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ProMed
Offshore Fund, Ltd.
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By:
/s/ ▇▇▇▇▇ ▇.
Musket____________________
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Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Managing
Director
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Series
A Notes Held: $22,539 principal
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Series
B Notes Held: $48,072 principal
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IN
WITNESS WHEREOF, the undersigned Borrower and the undersigned Series A Holders
and Series B Holders have caused this Agreement and Amendment to be executed
as
of the day first above written.
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ProMed
Offshore Fund II, Ltd.
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By:
/s/ ▇▇▇▇▇ ▇.
Musket____________________
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
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Title:
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Managing
Director
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Series
A Notes Held: $835,569
principal
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Series
B Notes Held: $414,713 principal
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▇▇▇▇▇
▇. ▇▇▇▇▇▇,
Individually
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/s/
▇▇▇▇▇ ▇.
Musket_______________________
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Series
A Notes Held:
$106,875 principal
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Series
B Notes Held:
$250,000
principal
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H&Q
Life Science Investors
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By:
/s/ ▇▇▇▇▇▇ ▇.
Omstead__________________
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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President
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Series
A Notes Held: $1,583,333 principal
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Series
B Notes Held: $1,000,000 principal
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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.