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EXHIBIT 4.3
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 ___
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 and July 27, 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 (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.
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
an
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