Exhibit 10.19
-------------
SECOND AMEMDMENT TO REGISTRATION RIGHTS AGREEMENT
This Second Amendment to Registration Rights Agreement (the "Second
Amendment") is dated as of March 31, 2006 by and among Intraop Medical
Corporation, a Nevada corporation (the "Company") and the Purchasers named below
(each, a "Purchaser" and together, the "Purchasers").
WHEREAS, the Company and certain of the Purchasers entered into a
Registration Rights Agreement dated as of August 31, 2005 (the "August Rights
Agreement").
WHEREAS, the Company and certain of the Purchasers entered into
Registration Rights Agreement dated as of October 25, 2005, on substantially the
same terms as the August Rights Agreement (the "October Rights Agreement" and
together with the August Rights Agreement, the "Rights Agreements").
WHEREAS, the Company and the Purchasers entered into an Amendment to
Registration Rights Agreement dated as of January 25, 2005 to modify the
registration obligations of the Company under the Rights Agreements (the "First
Amendment").
WHEREAS, the Company and the Purchasers have agreed to further modify the
registration obligations of the Company under the Rights Agreements, as set
forth below.
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration and
intending to be legally bound, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined herein
that are defined in the Rights Agreements shall have the meanings given such
terms in the Rights Agreements.
2. Amendment to Section 1 (Definitions) - Definition of Effectiveness
Date. The definition of "Effectiveness Date" set forth in Section 1 of the
Rights Agreements is hereby amended in its entirety to provide as follows:
"Effectiveness Date" means, (i) with respect to the initial
Registration Statement required to be filed hereunder, May 15, 2006, (ii)
with respect to any subsequent Registration Statement referred to in
Section 2(a), as amended, thirty (30) calendar days following the Filing
Date for such subsequent Registration Statement and (iii) with respect to
any additional Registration Statements which may be required pursuant to
Section 3(c), the 120th calendar day following the date on which the
Company first knows, or reasonably should have known, that such additional
Registration Statement is required hereunder; provided, however, in the
event the Company is notified by the Commission that one of the above
1
Registration Statements will not be reviewed or is no longer subject to
further review and comments, the Effectiveness Date as to such Registration
Statement shall be the fifth Trading Day following the date on which the
Company is so notified if such date precedes the dates required above."
3. Penalties; Events of Default.
(a) The Purchasers hereby agree that any liquidated damages or penalty
interest payable by the Company pursuant to Section 2(b)(i) of the Rights
Agreements (without giving effect to this Amendment) with respect to filing a
Registration Statement on or prior to the Filing Date are hereby waived and
extinguished.
(b) The Company and Purchasers party to the August Rights Agreement hereby
agree that liquidated damages payable by the Company pursuant to Section
2(b)(iv) of the August Rights Agreement with respect to the Registration
Statement not being declared effective by the Commission by its Effectiveness
Date, shall accrue commencing May 15, 2006 and shall be payable by the Company
in accordance with Section 2(b) of the August Rights Agreement.
(c) The Company and Purchasers party to the October Rights Agreement
hereby agree that, notwithstanding the definition of "Effectiveness Date," as
amended, liquidated damages payable by the Company pursuant to Section 2(b)(iv)
of the October Rights Agreement with respect to the Registration Statement not
being declared effective by the Commission by its Effectiveness Date, shall
accrue and be payable commencing May 30, 2006 if, on such date, fifty percent
(50%) or more of the Registrable Securities under the October Rights Agreement
have not been registered pursuant to a Registration Statement declared effective
by the Commission. Such liquidated damages shall continue to accrue and be
payable until all Registrable Securities under the October Rights Agreement have
been registered pursuant to a Registration Statement declared effective by the
Commission.
(d) Any Event of Default (as defined in the 7% convertible debentures or
10% senior secured debentures issued by the Company to the Purchasers, as
applicable) arising from the Company's breach of Section 2 of the Rights
Agreements is hereby waived, subject to the Company's compliance with Section 2
of the Rights Agreements, as amended.
4. Effective Date of Second Amendment. This Second Amendment shall be
effective when executed by holders of seventy five percent (75%) of the
outstanding Registrable Securities under each of the August Rights Agreement and
the October Rights Agreement.
5. Reference to the Agreement. On and after the effective date of this
Amendment, each reference in the August Rights Agreement or the October Rights
Agreement to "the Agreement," "this Agreement," "hereunder" and "hereof" or
2
words of like import shall refer to the August Rights Agreement or the October
Rights Agreement, (as applicable) as amended by the First Amendment and this
Second Amendment. The August Rights Agreement and the October Rights Agreement,
as amended by the First Amendment and this Second Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed.
6. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Amendment shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof.
7. Counterparts. This Second Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
3
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
THE COMPANY:
------------
INTRAOP MEDICAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
THE PURCHASERS:
--------------
BUSHIDO MASTER CAPITAL FUND, LP
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GAMMA OPPORTUNITY CAPITAL PARTNERS, LP CLASS A
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President/Director
GAMMA OPPORTUNITY CAPITAL
PARTNERS, LP CLASS C
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President/Director
4
SAMIR FINANCIAL, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
REGENMACHER HOLDINGS, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
ABS SOS-PLUS PARTNERS LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
DOLPHIN OFFSHORE PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
ALPHA CAPITAL AG
By: ___________________________________________
Name:
Title:
CRESTVIEW CAPITAL MASTER, LLC
By Crestview Capital Partners LLC,
its sole manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
5
MAGNETAR CAPITAL MASTER FUND, LTD.
By: Magnetar Financial, LLC
Its: Investment Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Counsel
6
