Exhibit 4.1
AMENDMENT NO. 2 TO INVESTMENT AGREEMENT
This Amendment No. 2 to Investment Agreement (this "Amendment") is
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made as of July 10, 1998 by and between Hatteras Partners, L.P., formerly known
as Ramius Hatteras Partners, L.P. (the "Investor") and Advanced Tissue Sciences,
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Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Company").
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WHEREAS, the Investor and the Company are parties to that certain
Investment Agreement dated as of February 9, 1996, as amended by Amendment No. 1
to Investment Agreement dated as of January 26, 1998 (the "Investment
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Agreement") pursuant to which the Investor shall, upon the request of the
Company, invest up to $50,000,000 in the Company's Common Stock, par value $.01
per share (the "Common Stock"); and
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WHEREAS, pursuant to Section 1.2(a) of the Investment Agreement, the
Investment Agreement terminates on the earlier of February 9, 1999 or the
occurrence of certain specified events, and the Investor and the Company desire
to extend the term to February 9, 2000;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. Capitalized terms used but not defined herein
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shall have the meanings ascribed to them in the Investment Agreement.
2. Amendment of Section 1.2(a) to Extend Term to February 9, 2000.
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The first sentence of Section 1.2(a) of the Investment Agreement is hereby
restated to read as follows:
"At any time prior to the earlier of (i) February 9, 2000 or (ii) the
termination of this Agreement in accordance with Article V herein, the Company
may deliver written notices to the Investor (each such notice hereinafter
referred to as a "Put Notice") stating a dollar amount (the "Dollar Amount") of
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Common Stock which the Company intends to sell to the Investor five business
days following the date (the "Put Notice Date") on which the Put Notice is given
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to the Investor by the Company in accordance with Section 6.4 herein."
3. Balance of Investment Agreement Unaffected. Except as amended
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hereby, the Investment Agreement continues in full force and effect as
originally executed.
4. Entire Agreement. This Amendment, together with the Investment
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Agreement, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and completely supersedes all prior or contemporaneous
agreements, understandings, arrangements, commitments, negotiations and
discussions of the parties, whether oral or written (all of which shall have no
substantive significance or evidentiary effect). Each party acknowledges,
represents and warrants that it has not relied on any representation, agreement,
understanding, arrangement or commitment which has not been expressly set forth
in this Amendment and the Investment Agreement. Each party acknowledges,
represents and warrants that this Amendment, together with the Investment
Agreement, is fully integrated and not in need of parol evidence in order to
reflect the intentions of the parties. The parties specifically intend that the
literal words of this Amendment and the Investment Agreement shall, alone,
conclusively determine all questions concerning the parties' intent.
5. Remedies for Failure to Purchase. For purposes of
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clarification, after February 9, 1999, the deliveries to be made by the Investor
to Company under Section 5(i), (ii) or (iii) of Amendment No. 1 to the
Investment Agreement shall no longer apply, and the warrants issued in
conjunction with the Investment Agreement and Amendment No. 1 to the Investment
Agreement to purchase 225,000 shares of Common Stock of the Company shall no
longer be subject to forfeiture.
6. Counterparts. This Amendment may be executed in one or more
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counterparts, which, when taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
ADVANCED TISSUE SCIENCES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and
Chief Executive Officer
HATTERAS PARTNERS, L.P.
By: Xxxxxxx Capital, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
