EXHIBIT
4.2
AGREEMENT AND AMENDMENT
TO
15% SECURED CONVERTIBLE PROMISSORY
NOTES DATED JANUARY 13, 2006
This Agreement and Amendment is executed and
delivered on this 22nd day of January 2007 by the undersigned
holders of at least a majority in outstanding principal amount of
those certain 15% Secured Convertible Promissory Notes issued by
Matritech, Inc. (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 ”). The undersigned holders of at least a
majority in outstanding principal amount of the Series A Notes
shall be referred to as the “ 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.
WHEREAS, the parties have determined that it is
in the best interests of the Borrower and all the holders of the
Series A 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 VI.A(viii)(c) of the
Series A Notes are hereby deleted in their entirety and replaced
with the following:
“(c) either (i) fail to repay in full all amounts
due under the Borrower’s 7.5% Convertible Debentures on the
maturity date thereof, (ii) fail to pay, when due, or within any
applicable grace period, any payment with respect to any
indebtedness of the Borrower in excess of $250,000 due to any third
party, other than payments contested by the Borrower in good faith,
or otherwise be in breach or violation of any agreement for monies
owed or owing in an amount in excess of $250,000 which breach or
violation permits the other party thereto to declare a default or
otherwise accelerate amounts due thereunder, or (ii) suffer to
exist (A) any Event of Default under and as defined in the Series B
15% Secured Convertible Promissory Notes issued by the Borrower on
or around January 22, 2007 (the “ Series B
Notes ”); or (B) any other default or event of
default under any agreement (including, without limitation, the
Series B Notes) binding the Borrower which default or event of
default would or is likely to have a material adverse effect on the
business, operations, properties, prospects or financial condition
of the Borrower;”
2. For purposes of the Series A Notes, the term
“ Security Agreement ” shall refer to
the Amended and Restated Security Agreement, by and between the
Borrower and the Collateral Agent (for itself and the holders of
the Series A Notes and the Series B Notes), dated on or around the
date hereof.
3. For purposes of the Series A Notes, the term
“ Contingent License Agreement ” shall
refer to the Amended and Restated Contingent License Agreement, by
and between the
Borrower and
the Collateral Agent (for itself and the holders of the Series A
Notes and the Series B Notes), dated on or around the date
hereof.
4. For purposes of the Series A Notes, the term
“ Security Documents ” shall include
the Security Agreement, the Contingent License Agreement and any
other document securing the Series A Notes.
5. For purposes of the Series A Notes, the term
“ NASDAQ ” means whichever, if any, of
the Nasdaq Global Market, the Nasdaq Global Select Market or the
Nasdaq Capital Market on which the shares of Common Stock are
traded.
6. The provisions of Article VII.E of the Series A
Notes are hereby deleted in their entirety and replaced with the
following:
“E. Distributions . In case the Borrower shall fix a payment date
for the making of a distribution to all holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Borrower is the continuing
corporation) of evidences of indebtedness or assets (other than
cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred
to in subsection C of this Article VII), or subscription rights or
warrants, the Conversion Price to be in effect after such payment
date shall be determined by multiplying the Conversion Price in
effect immediately prior to such payment date by a fraction, the
numerator of which shall be the total number of shares of Common
Stock outstanding multiplied by the Closing Sales Price (as defined
below) per share of Common Stock immediately prior to such payment
date, less the fair market value (as determined by the
Borrower’s Board of Directors in good faith) of said assets
or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall
be the total number of shares of Common Stock outstanding
multiplied by such Closing Sales Price per share of Common Stock
immediately prior to such payment date. Such adjustment shall be
made successively whenever such a payment date is
fixed.”
7. The provisions of Article VIII.C(iii) of the
Series A 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 pursuant to any equity compensation plan
approved by the Borrower’s Board of Directors or as expressly
required by the terms of the Series A Notes or the Series B
Notes;”
8. The provisions of Article XI.L of the Series A
Notes are hereby deleted in their entirety and replaced with the
following:
“L. “ Interest Installment
Amount ” means, as to any Quarterly Installment
Date, an amount equal to the accrued and unpaid interest on the
outstanding Principal through such Quarterly Installment
Date.”
9. The provisions of Article XI.R of the Series A
Notes are hereby deleted in their entirety and replaced with the
following:
“R. “ Scheduled Maturity
Date ” means Dece
