FIFTH AMENDMENT TO TRANSACTION DOCUMENTS

This FIFTH AMENDMENT TO TRANSACTION DOCUMENTS (this “Amendment”) is made as of the 5th day of October 2011, by and between URIGEN PHARMACEUTICALS, INC., a Delaware corporation with its principal place of business at 1700 North Broadway, Suite 330, Walnut Creek, CA 94596 (the “Borrower”), Urigen N.A., Inc., a Delaware corporation with its principal place of business at 1700 North Broadway, Suite 330, Walnut Creek, CA 94596 (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 series of Senior Secured Convertible Notes pursuant to the Purchase Agreement (the “Prior Notes”);

WHEREAS, the Lender converted its Prior Notes into a series of Convertible Preferred Stock of the Borrower (the “Series C Preferred Stock”) on or about April, 2010;

WHEREAS, on or about March 3 2011, the Borrower issued to the Lender a Promissory Note in the aggregate principal amount of $611,194.83, evidencing the dividend payments on shares of Series C Convertible Preferred Stock of Borrower  accrued through March 2, 2011 and additional principal of $150,000 loaned to Borrower (the “Note”);

WHEREAS, the Borrower has requested that the Lender extend additional credit in the principal amount of $300,000 to be evidenced by one or more Convertible Promissory Notes (the “Note”), in substantially the form attached hereto;  and

WHEREAS, the parties hereto wish to amend the Transaction Documents, as previously amended, to accomplish the foregoing as is set forth in more detail herein.

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 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)           Except as otherwise set forth herein or in the Schedules and Exhibits hereto, 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, the Guaranty (as defined below), the October 2011 Warrant (as defined below) and the Note (collectively, the “Amendment Documents”) have 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 Guarantor is bound.  No approval of any person, corporation, governmental body or other entity is a prerequisite to the execution, delivery and performance by the Borrower and the Guarantor of the Amendment Documents to ensure the validity or enforceability hereof or thereof.

(e)           The Amendment Documents will constitute the legally binding obligation of Borrower and the Guarantor, enforceable in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now existing or hereafter enacted relating to or affecting the enforcement of creditors’ rights generally, and as enforceability may be subject to limitations based on general principles of equity (regardless of whether such enforceability is considered a proceeding in equity or at law).

 

 

(i)	the term “Conversion Shares” in the Purchase Agreement shall be deemed to mean shares of Common Stock issuable and/or issued upon conversion of the Notes or Preferred Stock or exercise of the 2007 Warrant, the 2010 Warrant, the 2011 Warrant and the October 2011 Warrant;

(ii)	the term “Notes” shall be deemed to mean and refer to the Preferred Stock and the various Promissory Notes issued to the Lender pursuant to the transaction documents (including the Note issued on or about the date hereof);

(iii)

nothing herein shall be deemed to amend (except as set forth expressly in this Section 2.4), release or waive any covenant or other obligation of the Borrower under the Purchase Agreement, all of which shall remain in full force and effect in accordance with the terms thereof, except as set forth in the Schedule of Exceptions attached hereto or as expressly waived; and

(iv)

notwithstanding anything to the contrary set forth in the Transaction Documents or the Purchase Agreement, the Lender acknowledges that the Borrower has not complied with its obligations to file periodic and other reports under the Securities Exchange Act of 1934, which non-compliance is hereby waived, for purposes of the Transaction Documents and the Purchase Agreement, through August 25, 2012, but not after such date (it being understood that no other event of default or default under the Transaction Documents is being waived hereby).

 

 

 

IN WITNESS WHEREOF, the undersigned have caused this Fifth Amendment to the Transaction Documents to be executed as of the date first above written.