Exhibit
10.1
SECOND AMENDMENT TO TRANSACTION
DOCUMENTS
This SECOND
AMENDMENT TO TRANSACTION DOCUMENTS (this
“Amendment”) is made as of the 13th day of August 2009,
by and between URIGEN PHARMACEUTICALS, INC. , a Delaware
corporation with its principal place of business at 27 Maiden Lane,
Suite 595, San Francisco, California 94108 (the
“Borrower”), Urigen N.A., Inc., a Delaware corporation
with its principal place of business at 27 Maiden Lane, Suite 595,
San Francisco, CA 94108 (the “Guarantor”), and
PLATINUM-MONTAUR LIFE SCIENCES, LLC , a Delaware limited
liability company (the “Lender”).
WHEREAS , the Lender and the Borrower previously entered
into a Note Purchase Agreement, dated as of January 9, 2009 (the
“Purchase Agreement”), which provided for the issuance
to the Lender of a Senior Secured Convertible Promissory Note as
set forth therein (the “January 2009 Note”), and the
parties have executed certain documents and instruments in
connection therewith;
WHEREAS , the Lender issued to the Borrower a Senior
Secured Convertible Promissory Note on or about April 28, 2009 (the
“April 2009 Note” and, together with the January 2009
Note, the “Existing Notes”);
WHEREAS, in
connection with the April 2009 Note, the Borrower and the Lender
entered into an Amendment to Transaction Documents dated as of
April 28, 2009;
WHEREAS, the Guarantor guaranteed the obligations of the
Borrower pursuant to the Guaranty, dated as of January 9, 2009,
delivered to the Lender (the “Guaranty”);
WHEREAS, the Borrower’s obligations under the
Existing Notes, and the Guarantor’s obligations under the
Guaranty, are secured pursuant to the Security Agreement (the
“Security Agreement”), dated as of January 9, 2009,
among the parties hereto, and the Patent, Trademark and Copyright
Security Agreement (the “IP Security Agreement”), dated
January 9, 2009, among the parties hereto; and
WHEREAS, the Borrower has requested that the Lender
extend additional credit in the form of an additional Senior
Secured Convertible Promissory Note, in the principal amount of
$202,500 (the “New Note”), in substantially the form
attached hereto.
NOW, THEREFORE , in consideration of the foregoing and for the
covenants contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
SECTION ONE
DEFINITIONS;
REPRESENTATIONS
Section 1.1
Terms Defined . Unless otherwise defined
herein, capitalized terms used herein shall have the meanings given
to such terms in the Purchase Agreement.
Section
1.2
Representations and Warranties of Borrower
. The Borrower and the
Guarantor represent and warrant to the Lender as
follows:
(a) Except
as otherwise set forth herein or in the Schedules and Exhibits
hereto, the representations and warranties of the Borrower and the
Guarantor made in the Transaction Documents remain true, complete
and accurate in all material respects, and the covenants of the
Borrower and the Guarantor are hereby reaffirmed, as of the date
hereof.
(b) The
Borrower and the Guarantor has each performed, in all material
respects, all obligations to be performed by it to date under the
Transaction Documents and no default or Event of Default exists
thereunder or an event that with the passage of time or giving of
notice or both, would constitute a default or an Event of
Default.
(c) Each
of the Borrower and the Guarantor is a corporation duly organized,
qualified, and existing in good standing under the laws of the
State of Delaware and has full power and authority to consummate
the transactions contemplated hereby. The Borrower and
the Guarantor are each duly qualified to do business in all states
and other jurisdictions in which the character of the property
owned by it or the nature of its activities causes such
qualification to be necessary.
(d) The
execution, delivery and performance of this Amendment has been duly
authorized by all necessary corporate actions of each of the
Borrower and the Guarantor, are within the corporate power of
Borrower and the Guarantor and are not in contravention of law, the
Borrower’s or the Guarantor’s Articles of
Incorporation, By-laws or the terms of any other documents,
agreements or undertakings to which the Borrower or the Guarantor
is a party or by which the Borrower or the Guaran
