Exhibit 4.3
AMENDMENT NO. 1 TO
TENTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT (this "Amendment"), entered into on April 13, 2006, among ALSIUS
CORPORATION, a California corporation (the "Company"), and the undersigned
investors in the Company (the "Investors").
RECITALS:
A. Certain of the Investors hold shares of the Company's Common Stock,
Series A, Series B, Series C-D, Series E and/or Series F Preferred Stock and
possess registration rights, information rights, rights of first refusal, and
other rights pursuant to that certain Tenth Amended and Restated Investor Rights
Agreement, dated as of September 2, 2004, among the Company, such Investors and
certain other shareholders of the Company (the "Tenth Restated Agreement").
B. On or about the date hereof, in connection with a bridge financing (the
"Bridge Financing"), the Company is issuing a series of 8% Unsecured Convertible
Promissory Notes (the "Bridge Notes") and warrants to purchase Common Stock of
the Company (the "Warrants").
C. It is a condition to the closing of the Bridge Financing that this
Amendment be executed by the parties hereto, and the parties are willing to
execute, and to be bound by the provisions of, this Amendment.
D. The undersigned Investors desire to amend the definition of
"Registrable Securities" under Section 1.1 of the Tenth Restated Agreement to
include the shares of stock issuable upon conversion of the Bridge Notes and
exercise of the Warrants.
E. The undersigned Investors desire to amend Section 1.2(a) of the Tenth
Restated Agreement to amend the date upon which a demand registration may be
requested.
F. The Investors executing this Amendment hold a majority of the shares
held by all Investors who are a party to the Tenth Restated Agreement and a
majority of the shares of Series C-D, Series E and Series F Preferred Stock or
Common Stock issuable upon conversion thereof, and therefore, have the power
under Section 3.6 of the Tenth Restated Agreement to amend such agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties to the Tenth Restated Agreement hereby agree that the
Tenth Restated Agreement shall be amended as follows:
1. Added Definition of 2006 Bridge Notes in Section 1.1. The undersigned
Investors hereby agree that a new definition shall be added to Section 1.1 of
the Tenth Restated Agreement to read as follows:
"2006 Bridge Notes" means the convertible promissory notes made by
the Company, dated April 13, 2006, in connection with a bridge financing
of the Company of approximately $6,000,000."
2. Revised Definition of "Warrants." The undersigned Investors hereby
agree that the definition of "Warrants" in Section 1.1 of the Tenth Restated
Agreement shall be deleted in its entirety and replaced with the following:
""Warrants" means those certain warrants to purchase Common Stock of
the Company (i) dated April 30, 2003, issued to the initial purchasers of
the Bridge Notes and (ii) dated April 13, 2006, issued to the initial
purchasers of the 2006 Bridge Notes."
3. Revised Definition of "Registrable Securities." The undersigned
Investors hereby agree that the definition of "Registrable Securities" in
Section 1.1 of the Tenth Restated Agreement shall be deleted in its entirety and
replaced with the following:
""Registrable Securities" means (i) the Common Stock issued in
exchange for the common stock issued by Retroperfusion Systems, Inc.
("RSI") upon conversion of the RSI Series B, Series C and Series D
Preferred Stock and in exchange for the RSI Series E and Series F
Preferred Stock, (ii) the Common Stock issued upon exercise of the
warrants issued under the Loan and Warrant Subscription Agreements dated
on or about August 17, 1993, (iii) the Common Stock issued under the Loan
and Warrant Subscription Agreements dated October 1994, (iv) the Common
Stock issued or issuable upon conversion of the Series A, Series B, Series
C-D, Series E and Series F Preferred Stock, (v) the Common Stock issuable
upon exercise of the Warrants issued in connection with the Bridge Notes,
(vi) the Common Stock issued or issuable upon conversion of the 2006
Bridge Notes, (vii) the Common Stock issuable upon exercise of the
Warrants issued in connection with the 2006 Bridge Notes and (viii) any
Common Stock of the Company issued or issuable in respect of the above
described securities upon any stock split, stock dividend,
recapitalization, or similar event, or any Common Stock otherwise issued
or issuable with respect to the above described securities; provided,
however, that shares of Common Stock or other securities shall not be
treated as Registrable Securities for purposes of Section 1 hereof if they
have been sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction."
2. Revised Section 1.2(a). The undersigned Investors hereby agree that the
lead-in sentence of Section 1.2(a) of the Tenth Restated Agreement shall be
deleted in its entirety and replaced with the following:
"(a) In case the Company shall receive at any time after the earlier
of (i) June 30, 2007 and (ii) six (6) months after the effective date of
the first registration statement filed by the Company covering an offering
of any of its securities to the public, a written request from Holders
("Initiating Holders") that the Company effect any registration,
qualification or compliance with respect to at
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least forty percent (40%) of the Registrable Securities (or any lesser
number of Registrable Securities if the anticipated aggregate offering
price to the public from the proposed sale of such Registrable Securities,
net of underwriting discounts and commissions, would exceed $8,000,000),
the Company will:"
3. Remainder of Tenth Restated Agreement Unchanged. Except as amended by
this Amendment, the Tenth Restated Agreement shall otherwise remain in full
force and effect.
4. Governing Law. This Amendment shall be governed by and construed under
the laws of the State of California, without regard to its conflicts of laws
provisions.
5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6. Facsimile Signatures. This Amendment may be executed and delivered by
facsimile and upon such delivery, the facsimile signature will be deemed to have
the same effect as if the original signature had been delivered to the other
parties. The original signature copy shall be delivered to the other parties by
mail. The failure to deliver the original signature copy and/or the non-receipt
of the original signature copy shall have no effect upon the binding and
enforceable nature of this Amendment.
IN WITNESS WHEREOF, the undersigned Investors and the Company have
executed this Amendment as of the day and year first above written.
ALSIUS CORPORATION,
a California corporation
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Address: 00000 Xxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
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XXXXXXXX VIII
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXXXX ASSOCIATES FUND III
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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FEVER TRUST
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Administrative Trustee
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
FEVER TRUST II
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Administrative Trustee
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
FEVER TRUST III
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Administrative Trustee
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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XXXXXX LIVING TRUST
By /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
Address: 0 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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NEW ENTERPRISE ASSOCIATES VII, L.P.
By: NEA Partners VII, Limited Partnership
Its General Partner
By: /s/ Xxxxxx X. Treinor III
------------------------------------
Name: Xxxxxx X. Treinor III
Title: Attorney-in-fact
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA PRESIDENTS FUND, L.P.
By: NEA General Partners, L.P.
Its General Partner
By: /s/ Xxxxxx X. Treinor III
------------------------------------
Name: Xxxxxx X. Treinor III
Title: Attorney-in-fact
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA VENTURES 1997, LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxx Xxxx
-------------------------------------
Name: Xxxxx X. Xxx Xxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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SIGHTLINE HEALTHCARE FUND II, L.P.
By: /s/ Arch X. Xxxxx
-------------------------------------
Name: Arch X. Xxxxx
Title: Managing Director
Address: 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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VERTICAL FUND I, L.P.
By Vertical Group, L.P., General Partner
By: x /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
Address: 00 XxXxxxxx Xxxxxx
Xxxxxx, XX 00000
VERTICAL FUND II, L.P.
By Vertical Group, L.P., General Partner
By: x /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
Address: 00 XxXxxxxx Xxxxxx
Xxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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MPM BIOVENTURES II, L.P.
By: MPM Asset Management II, L.P.,
its General Partner
By: MPM Asset Management II LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Investment Manager
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
MPM BIOVENTURES II-QP, L.P.
By: MPM Asset Management II, L.P.,
its General Partner
By: MPM Asset Management II LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Investment Manager
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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MPM BIOVENTURES GMBH & CO.
PARALLEL-BETEILIGUNGS KG
By: MPM Asset Management II, L.P., in its
capacity as the Special Limited
Partner
By: MPM Asset Management II LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Investment Manager
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
MPM ASSET MANAGEMENT INVESTORS 2000 B LLC
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Investment Manager
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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CHANNEL MEDICAL PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
Address: 0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXX VENTURES, L.P.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: Fountain Place
0000 Xxxx xx Xxxxx
Xxxxxx, XX 00000-0000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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CANAAN EQUITY II L.P.
By: Canaan Equity Partners II LLC
By: /s/ Illegible
-----------------------------------
Member/Manager
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
CANAAN EQUITY II L.P. (QP)
By: Canaan Equity Partners II LLC
By: /s/ Illegible
-----------------------------------
Member/Manager
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
CANAAN EQUITY II ENTREPRENEURS LLC
By: Canaan Equity Partners II LLC
By: /s/ Illegible
-----------------------------------
Manager
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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CYCAD GROUP, LLC
By: /s/ K. Xxxxxxx Xxxxxx
-----------------------------------
Name: K. Xxxxxxx Xxxxxx
Title: President and Manager
Address: 0000 Xxxxxxxxxxx Xxx., Xxxxx 000
P.O. BOX 5010
Xxxxxxxxxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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GUIDANT CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: _______________________________
_______________________________
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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UNICORN MEDICAL INCORPORATED
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: c/o Xxxxxx Xxxxx, M.D.,
Department of Radiology
Cornell University
000 X. 00xx Xxxxxx
Xxx 000
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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MEDTRONIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: VP & CDO
Address: ______________________________
______________________________
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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ev3 INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address: c/o Xxx Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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