John J. Concannon III | |
Direct Phone: | 617.951.8874 |
Direct Fax: | 617.951.8736 |
jack.concannon@bingham.com |
|
Re:
|
Access
Pharmaceuticals, Inc. – File No.
333-149633
|
1.
|
Oracle
Partners and affiliates,
|
2.
|
Lake
End Capital LLC and affiliates, and
|
3.
|
SCO
Capital Partners and affiliates.
|
Very truly yours, | |
/s/ John J. Concannon | |
John J. Concannon III, Esq. | |
Bingham McCutchen, LLP |
Table
1
|
Note
holder
|
Principle
Amount
|
Original
Date of Note
|
Original
Interest Rate
|
Original
Converion Price
|
Prior
common stock registration number
|
|
Beach
Capital LLC
|
$ 500,000
|
2/16/2006
|
7.50%
|
$0.22
|
(1)
|
333-135734
|
Lake
End Capital LLC
|
$ 500,000
|
2/16/2006
|
7.50%
|
$0.22
|
(1)
|
333-135734
|
Lake
End Capital LLC
|
$ 100,000
|
10/24/2006
|
7.50%
|
$0.22
|
(1)
|
N/A
|
Lake
End Capital LLC
|
$ 100,000
|
12/6/2006
|
7.50%
|
$0.22
|
(1)
|
N/A
|
SCO
Capital Partners LLC
|
$ 4,000,000
|
2/16/2006
|
7.50%
|
$0.22
|
(1)
|
333-135734
|
SCO
Capital Partners LLC
|
$ 400,000
|
10/24/2006
|
7.50%
|
$0.22
|
(1)
|
N/A
|
SCO
Capital Partners LLC
|
$ 400,000
|
12/6/2006
|
7.50%
|
$0.22
|
(1)
|
N/A
|
Oracle
Institutional Partners LP
|
$ 698,500
|
9/13/2000
|
7.00%
|
$5.50
|
(2)
|
333-135734
& 333-92210
|
Oracle
Offshore Ltd
|
$ 132,000
|
9/13/2000
|
7.00%
|
$5.50
|
(2)
|
333-135734
& 333-92210
|
Oracle
Partners, LP
|
$ 2,524,500
|
9/13/2000
|
7.00%
|
$5.50
|
(2)
|
333-135734
& 333-92210
|
SAM
Oracle Investments, Inc.
|
$ 660,000
|
9/13/2000
|
7.00%
|
$5.50
|
(2)
|
333-135734
& 333-92210
|
Notes: |
(1) - Notes were convertible at $1.10 per share at the time of exchange. |
(2) - Notes were convertible at $1.00 per share at the time of exchange, however |
pursuant to the terms of the exchange these notes were exchanged for Series A |
Preferred Stock assuming a conversion rate of $3.00 per share. |
Table
2
|
||||||||
Note
holder
|
Amount
|
Notes
Convertible
Into
Common
Stock
|
||||||
SCO
Capital LLC (1)
|
Principal
|
$ | 4,800,000 | 4,363,636 | ||||
Interest
due
|
585,750 | 532,500 | ||||||
Total
SCO Capital LLC Notes
|
$ | 5,385,750 | 4,896,136 | |||||
Lake
End Capital LLC (1)
|
Principal
|
700,000 | 636,363 | |||||
Interest
due
|
80,709 | 73,371 | ||||||
Total
Lake End Capital LLC Notes
|
$ | 780,709 | 709,734 | |||||
Beach
Capital LLC (1)
|
Principal
|
500,000 | 454,545 | |||||
Interest
due
|
65,729 | 59,754 | ||||||
Total
Beach Capital LLC Notes
|
$ | 565,729 | 514,299 | |||||
Oracle
Related Notes (2)
|
Principal
|
4,015,000 | 1,338,333 | |||||
Interest
due
|
358,104 | 119,366 | ||||||
Total
Oracle Capital LLC Notes
|
$ | 4,373,104 | 1,457,699 | |||||
Total
|
$ | 11,105,292 | 7,577,868 |
Notes: |
(1) - Comprised on 7.5% notes convertible at $1.10 per share at the time of exchange. |
(2) - Comprised of 7.7% notes (originally 7% notes) convertible at $1.00 per share at |
the time of exchange, however pursuant to the terms of the exchange these notes |
were exchanged for Series A Preferred Stock assuming a conversion rate of $3.00 |
per share. |
7.0% (Subject to
Adjustment) Convertible
Promissory Notes
(collectively, the “7.0%
Notes”)2
|
7.5 % Secured
Convertible Promissory
Notes (collectively, the
“7.5% Notes”)1
|
Series
A Cumulative Convertible
Preferred
Stock
(the
“Series A Preferred Stock”)
|
||||||||
Interest
& Repayment
/Dividends
|
Company
shall pay interest at the rate of 7.0% per annum. Pursuant to
the terms of the note, the rate subsequently increased to 7.7% per
annum. Rate increases to 10% per annum on any overdue
amounts.
|
Company
shall pay interest at the rate of 7.5% per annum, compounded
quarterly.
|
Company
shall pay cumulative dividends at the rate per share of 6% per annum,
payable semi-annually on June 30 and December 31 of each
year.
Dividends
may be paid in cash or, if certain conditions are met, shares of the
Company’s Common Stock. Such conditions to payment of dividends
in shares of Common Stock includes that such shares are covered by an
effective registration statement.
Entitled
to receive any dividends or distributions (other than dividends payable
solely in additional Common Stock) declared by the Board and paid to the
holders of Common Stock, pari passu on an as-converted
basis.
|
|||||||
Events
of
Default
|
Holder
may declare 7.0% Note immediately due and payable.
Upon
an event of default as a result of bankruptcy or insolvency immediately
due and payable without any declaration of a holder.
|
To
the extent permitted by law, the Company will pay interest at the rate of
12% per annum, payable on demand, on the outstanding principal balance of
the note from the date of the event of default until payment in
full.
|
Dividends
not paid within three (3) trading days of a dividend payment date shall
continue to accrue and shall be entitled to a late fee of 18% per
annum.
|
|||||||
Voting
Rights
|
N/A
|
N/A
|
Votes
together, on an as converted basis, with the holders of Common Stock as a
single class.
Subject
to a beneficial ownership cap of 4.99%. Cap may be waived by
the holder of Series A Preferred Stock.
|
|||||||
Liquidation
Rights
|
Unsecured
creditor in liquidation or bankruptcy with priority over
equity.
|
The
7.5% Notes are secured pursuant to the terms of a separate security
agreement.
Company
shall repay in full the entire principal balance then outstanding, plus
all accrued and unpaid interest in the event of a sale or complete
liquidation of the Company, unless the successor or acquiring corporation
is to assume the 7.5% Notes.
|
Junior
to any debt in any liquidation or bankruptcy. Upon a liquidation,
dissolution or winding up of the Company, prior to any distributions to
holders of the Common Stock or any other class of preferred stock, the
holders of the Series A Preferred Stock shall be entitled to receive
payment out of the Company’s assets in an amount equal to the greater of
(i) the “Liquidation Preference” for the Series A Preferred Stock
($10,000.00 per share of Series A Preferred Stock), plus any accumulated
and unpaid dividends thereon (whether or not declared), or (ii) the cash
or other property distributable with respect to the shares of Common Stock
into which shares of Series A Preferred Stock, including any accrued
dividends thereon, could have been converted immediately prior to such
payment.
|
|||||||
Consent
Rights
|
N/A
|
N/A
|
So
long as 20% of the shares of Series A Preferred Stock remain outstanding,
the consent of the holders of at least 66% of the Series A Preferred Stock
at the time outstanding shall be necessary for effecting or validating any
major corporate actions.
|
Conversion
other than upon Merger, Consolidation or Disposition of
Assets
|
Optional
Conversion: The holder has the option, at any time on or
after September 13, 2002 and before the close of business on September 13,
2005, to convert a 7.0% Note into fully paid and nonassessable shares of
the Company’s Common Stock. The 7.0% Notes shall be convertible
at the rate of 1,000 shares of Common Stock for each $5,500 principal
amount surrendered (the “Conversion Rate”).
Pursuant
to the terms of amendment on November 3, 2005 the conversion price of the
7.0% Note was subsequently changed from $5.50 to $1.00.
The
Conversion Rate shall be adjusted upon the payment of a dividend or other
distribution of a class stock payable in shares of Common Stock, or if the
Company issues rights, options or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share of the
Common Stock, or if the Company by dividend or otherwise issues to holders
of Common Stock evidences of indebtedness, shares of any class of capital
stock, or other property, or upon the combination or consolidation of the
outstanding shares of Common Stock by reclassification or otherwise into a
greater or lesser number of
|
Optional
Conversion: The holder has the option, at any time, to
convert the principal amount plus accrued and unpaid interest thereon into
such number of fully paid and non-assessable shares of the Company’s
Common Stock as is determined by dividing (i) the portion of the principal
amount to be converted plus accrued and unpaid interest thereon by (ii)
the conversion rate which shall initially be $0.22. Such rate
subject to adjustment upon the issuance of dividends on common stock which
are paid in common stock, or the combination or consolidation of the
outstanding shares of common stock by reclassification or otherwise into a
greater or lesser number of shares of common stock. The
conversion rate was subsequently amended to $1.10 pursuant to a 1 for 5
stock split.
Mandatory
Conversion: Upon the election of the Company following
the occurrence of certain conversion triggering events, including an
effective registration statement, a minimum trading price and the
availability of a sufficient number of authorized and unissued shares of
Common Stock.
Optional
and Mandatory Conversion are subject to a Beneficial Ownership Cap (as
defined in the 7.5% Notes) of 4.99%.
|
Optional
Conversion: Holders may convert all or any lesser
portion of such holder’s shares of Series A Preferred Stock into such
number of fully paid and non-assessable shares of Common Stock as is
determined by dividing (i) the aggregate liquidation preference plus
accrued and unpaid dividends thereon by (ii) $3.00 per share subject to
adjustment. Dollar amount is subject to full adjustment to the
price of any additional the issuances of shares of Common Stock or common
stock equivalents at a price below $3.00 per share. Price is
also subject to additional adjustments for the issuance of dividends on
Common Stock which are paid in Common Stock, or the combination or
consolidation of the outstanding shares of Common Stock by
reclassification or otherwise into a greater or lesser number of shares of
Common Stock.
Mandatory Conversion:
The Company may, with the prior written consent of the holders of not less
than a majority of the Series A Preferred Stock at such time outstanding,
and following the occurrence of a conversion triggering event consisting
of an effective registration statement and a minimum daily market price or
a qualified financing with aggregate proceeds of at least $10,000,000,
convert all of the shares of Series A Preferred Stock into such number of
fully paid and non-assessable shares of Common Stock
Optional
and Mandatory Conversion are subject to a Beneficial Ownership Cap of
4.99%.
|
shares
of Common Stock, or if the Company makes a cash distribution, or if the
Company makes an excess purchase payment (pursuant to a tender offer for
shares of its Common Stock), or as the Company deems advisable in order to
avoid or diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of rights
or warrants or from any event treated as such for income tax
purposes.
|
||||||||||
Conversion
upon Merger, Consolidation or Disposition of Assets
|
The
surviving entity shall deliver to the holders of the 7.0% Notes a
supplemental agreement providing that such holder shall have the right
thereafter, during the period a 7.0% Note is convertible, to convert a
7.0% Note into the securities, cash and property receivable upon the
consolidation, merger or other disposition into which the note may have
been converted immediately prior to such event, subject to certain
qualifications.
|
If
a successor or acquiring entity in a sale transaction, or if an entity
different from the successor or acquiring entity, the entity whose capital
stock or assets the holders of the Common Stock are entitled to receive as
a result of such sale transaction, (a) is to assume the 7.5% Notes and the
transaction documents and (b) the assuming entity is a publicly traded
corporation, the assuming corporation shall expressly assume the due and
punctual observance and performance of each and every covenant and
condition contained in the 7.5% Notes and the transaction
documents.
|
Upon
a change of control pursuant to which shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or other
securities of the successor or acquiring corporation are to be received by
the holders of the Company’s Common Stock, the successor corporation shall
expressly assume the due and punctual observance and performance of each
and every covenant and condition to be performed and observed by the
Company pursuant to, and all obligations and liabilities contained in, the
Certificate of Designation.
|
|||||||
Participation
Rights
|
N/A
|
N/A
|
Entitled
to participate, up to such holder’s pro rata amount with respect to new
issuance by the Company of any future equity or equity-linked securities
or debt convertible into equity or in which there is an equity component,
on the same terms and conditions as offered to the other purchasers
thereof.
|
|||||||
Prepayment/
Redemption
|
Company Option: Subject
to redemption at any time on or after December 31, 2001 (the “Redemption
Commencement Date”), at the election of the Company, at a redemption price
of 100% of the principal amount thereof, together with accrued interest;
provided that the 7.0% Notes may not
be redeemed on or after September 30, 2001 unless the closing price of the
Company exceeds 1.5 times the conversion price of $5.50 for any period of
10 consecutive trading days commencing on or after August 30, 2001 and
ending not less than two trading days prior to the Company’s giving notice
of such redemption to the holder thereof.
Holder’s
Option: Upon a change in control, the holder of shall
have the right, subject to the holders of the senior indebtedness to
require the Company to repurchase the 7.0% Note, at a purchase price equal
to 105% of the principal amount of the note, plus interest accrued to the
repurchase date. The Company may repurchase the note in cash
or, upon fulfillment by the Company of certain conditions, by delivery of
shares of Common Stock.
|
Company
may not prepay the outstanding principal or interest prior to the maturity
date without the written consent of the Payee, unless the Company provides
notice at least 60, but not more than 90, days prior to the date on which
the Company intends to make such prepayment.
|
Holder
may demand that its shares of Series A Preferred Stock be redeemed upon
any willful refusal by the Company to convert such holder’s Series A
Preferred Stock..
The
Company shall pay cash for each such share to be redeemed an amount equal
to the greater of (i) all accrued but unpaid dividends as of the date on
which demand for redemption is made, plus 100% of the liquidation
preference, or (ii) the total number of shares of Common Stock into which
such share is convertible, multiplied by the current market price at the
time of the redemption triggering event.
|
Subordination
|
Subordinated
in right of payment to the prior payment in full of all senior
indebtedness.
|
N/A
|
N/A
|
|||||||
Registration
Rights
|
Entitled
to resale registration rights.
|
Entitled
to resale registration rights.
|
Entitled
to resale registration rights. Stock dividends paid in lieu of
cash dividends shall be registered unless holder of Series A Preferred
Stock may sell such dividend shares pursuant to Rule 144.
|
Event
Type
|
Form
of Consideration
|
Date
Acquired
|
Common
Shares Acquired
|
Price
per Share
|
Consideration
Paid
|
Market
Price
|
Market
Value
|
In-the-Money/(out-of-the-Money)
value of shares acquired
|
||
Prior
Placement Warrants
|
Unexercised
Warrant
|
10/26/2006
|
386,364
|
$ 1.32
|
N/A
|
$ 1.10
|
$ 425,000
|
(85,000)
|
||
Prior
Placement Warrants
|
Unexercised
Warrant
|
12/6/2006
|
386,364
|
$ 1.32
|
N/A
|
$ 1.80
|
$ 695,455
|
185,455
|
||
Sub-Total
Prior Warrants being Registered
|
772,728
|
1,120,456
|
100,455
|
|||||||
Series
A Purchase
|
Cash
|
11/9/2007
|
3,179,996
|
$ 3.00
|
$ 9,540,001
|
$ 3.11
|
$ 12,097,060
|
427,870
|
||
Series
A Purchase/Exchange of Note
|
Exchange
of Note
|
11/9/2007
|
7,577,868
|
$ 3.00
|
$ 21,468,927
|
(1)
|
$ 3.11
|
$ 21,359,897
|
755,495
|
|
Series
A Purchase Warrant
|
Unexercised
Warrant
|
11/9/2007
|
3,649,880
|
$ 3.50
|
N/A
|
(2)
|
$ 3.11
|
$ 11,351,127
|
(1,423,453)
|
|
Series
A Purchase
|
Cash
|
2/4/2008
|
908,331
|
$ 3.00
|
$ 2,725,000
|
$ 2.80
|
$ 2,543,327
|
(181,666)
|
||
Series
A Purchase - Warrant
|
Unexercised
Warrant
|
2/4/2008
|
499,584
|
$ 3.50
|
N/A
|
(2)
|
$ 2.80
|
$ 1,398,835
|
(349,709)
|
|
Other
- Paid in Kind Dividends
|
Possible
dividends (value at time of dividend date equal to 20 day moving
average)
|
N/A
|
1,582,360
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
||
Total
|
18,170,747
|
$ 33,733,928
|
$ 49,870,701
|
(3)
|
$ (671,009)
|
|||||