Exhibit 10.28
AMENDMENT TO 7.0% (SUBJECT TO ADJUSTMENT)
CONVERTIBLE
PROMISSORY NOTES DUE SEPTEMBER 13, 2005
This Amendment to 7.0% (Subject to
Adjustment) Convertible Promissory Notes Due September 13, 2005,
dated as of November 3, 2005 (the “ Amendment
”), is by and among Access Pharmaceuticals, Inc., a Delaware
corporation (the “ Company ”), and each of
Oracle Partners LP, Oracle Institutional Partners LP, SAM Oracle
Investments Inc. and Oracle Offshore Ltd. (each, a “
Holder ”), amending certain provisions of those
certain 7.0% (Subject to Adjustment) Convertible Promissory Notes
Due September 13, 2005 No. R-1 (each as amended and in effect from
time to time, a “ Note ”) from the Company to
each Holder in the original principal amount of $2,524,500,
$698,500, $660,000 and $132,000, respectively. Terms not otherwise
defined herein which are defined in any Note shall have the same
respective meanings herein as therein.
WHEREAS, the Company and each Holder
have agreed to modify certain terms and conditions of each Note as
specifically set forth in this Amendment.
NOW, THEREFORE, in consideration of
the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
Amendment to Each Note . Each Note is hereby amended as
follows:
(a)
The title of each Note is hereby deleted in its entirety and
replaced with the following:
“7.0% (Subject to Adjustment)
Convertible Promissory Note Due April 28, 2007.”
(b)
All references to “September 13, 2005” in the preamble
(the “ Preamble ”) of each Note and the first
sentence of Section 2(a) of each Note are hereby deleted and
replaced with “April 28, 2007.”
(c)
The following text is hereby added following the word
“annum” and before the word “ provided
” in the first sentence of the Preamble:
“(and shall pay interest from
September 13, 2006, or from the most recent interest payment date
to which interest has been paid or duly provided for, on April 28,
2007).”
(d)
The following text is hereby added following the words
“September 1” and before the word
“(whether” in the second sentence of the
Preamble:
“(and April 1 in the case of
the interest payment due on April 28, 2007).”
(e)
All references to “$5,500” in each Note, including,
without limitation, in the first sentence of Section 1 of each
Note, the first sentence of Section 2(a) of each Note, the defined
term “Conversion Price” in Section 2(j) of each Note
and the second sentence of Section 7(c) of each Note, are hereby
deleted and replaced with “$1,000.”
(f)
The following text is hereby added as a new paragraph following the
first paragraph of Section 2(a) of each Note:
“Automatically and without
further action, immediately upon the Closing Price of the Company
Stock exceeding 1.5 times the Conversion Price for any period of 20
consecutive Trading Days, this Security (or any portion of the
principal amount hereof then outstanding) shall convert into fully
paid and nonassessable shares (calculated to the nearest 1/100 of a
share) of Common Stock of the Company at the rate of 1,000 shares
of Common Stock for each $1,000 principal amount of Security. Upon
such conversion of this Security (or any portion of the principal
amount hereof then outstanding), the holder of this Security shall
surrender this Security, duly endorsed or assigned to the Company
or in blank to the Company at the Designated Office. Upon surrender
of this Security upon such conversion, the holder will be entitled
to receive the interest accruing on the principal amount of this
Security then being converted from the interest payment date next
preceding the date of such conversion to such date of conversion.
No payment or adjustment is to be made on conversion for dividends
on the Common Stock issued on conversion hereof. No fractions of
shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest, the Company
shall pay a cash adjustment, computed on the basis of the Closing
Price of the Common Stock on the date of conversion, or, at its
option, the Company shall round up to the next higher whole
share.”
(g)
Sections 3(a) through (i) of each Note are hereby deleted in their
entirety and replaced with the following:
“3.
Conversion Upon Change in Control .
