EXHIBIT 10.15
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AMEMDMENT TO REGISTRATION RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement (the "Amendment") is dated
as of January 25, 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, Section 2 of the Rights Agreements requires the Company to file a
registration statement with the Securities and Exchange Commission registering
securities issued by the Company and held by the Purchasers on the timetable set
forth therein.
WHEREAS, the Company and the Purchasers have agreed to 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, Xxxxx 00, 0000, (xx)
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
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event the Company is notified by the Commission that one of the above
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. Amendment to Section 1 (Definitions) - Definition of Filing Date. The
definition of "Filing Date" set forth in Section 1 of the Rights Agreements is
hereby amended in its entirety to provide as follows:
"Filing Date" means (i) with respect to the initial Registration
Statement required hereunder, January 27, 2006, (ii) with respect to any
subsequent Registration Statement referred to in Section 2(a), as amended,
five (5) Trading Days following the date that the immediately preceding
Registration Statement filed by the Company with the Commission is declared
effective by the Commission and (iii) with respect to any additional
Registration Statements which may be required pursuant to Section 3(c), the
30th day following the date on which the Company first knows, or reasonably
should have known that such additional Registration Statement is required
hereunder."
4. Amendment to Section 2(a) (Shelf Registration). Section 2(a) of the
Rights Agreements is hereby amended in its entirety to provide as follows:
"(a) On or prior to the Filing Date, the Company shall prepare and
file with the Commission a "Shelf" Registration Statement covering the
resale of ten million (10,000,000) shares of Registrable Securities on such
Filing Date for an offering to be made on a continuous basis pursuant to
Rule 415. Thereafter, (i) within five (5) Trading Days of the date that
such initial Registration Statement is declared effective by the Commission
the Company shall file a second "Shelf" Registration Statement to register
fifteen million (15,000,000) shares of Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415, (ii) within
five (5) Trading Days of the date that such second Registration Statement
is declared effective by the Commission the Company shall file a third
"Shelf" Registration Statement to register twenty two million five hundred
thousand (22,500,000) shares of Registrable Securities for an offering to
be made on a continuous basis pursuant to Rule 415 and (iii) to the extent
required, within five (5) Trading Days of the date that such third
Registration Statement is declared effective by the Commission the Company
shall file a fourth "Shelf" Registration Statement to register such
additional number of Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415 such that the aggregate number of
Registrable Securities registered by the Company pursuant to the Rights
Agreements equals 130% of the Registrable Securities on the Filing Date.
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The Registrable Securities included in each such Registration Statement
shall be allocated among the Purchasers on a pro rata basis (calculated
based upon the number of Registrable Securities held by such Purchaser
divided by the total number of Registrable Securities held by all
Purchasers). Each Registration Statement shall be on Form S-3 (except if
the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on another
appropriate form in accordance herewith) and shall contain (unless
otherwise directed by the Holders) substantially the "Plan of Distribution"
attached hereto as Annex A. Subject to the terms of this Agreement, the
Company shall use its best efforts to cause each Registration Statement to
be declared effective under the Securities Act as promptly as possible
after the filing thereof, and, with respect to the initial Registration
Statement, prior to the applicable Effectiveness Date, and shall use its
best efforts to keep each such Registration Statement continuously
effective under the Securities Act until all Registrable Securities covered
by such Registration Statements have been sold or may be sold without
volume restrictions pursuant to Rule 144(k) as determined by the counsel to
the Company pursuant to a written opinion letter to such effect, addressed
and acceptable to the Company's transfer agent and the affected Holders
(the "Effectiveness Period"). The Company shall telephonically request
effectiveness of a Registration Statement as of 5:00 pm Eastern Time on a
Trading Day. The Company shall immediately notify the Holders via facsimile
of the effectiveness of a Registration Statement on the same Trading Day
that the Company telephonically confirms effectiveness with the Commission,
which shall be the date requested for effectiveness of a Registration
Statement. The Company shall, by 9:30 am Eastern Time on the Trading Day
after the Effective Date (as defined in the Purchase Agreement), file a
Form 424(b)(5) with the Commission. Failure to so notify the Holder within
1 Trading Day of such notification shall be deemed an Event under Section
2(b)."
5. Amendment to Section 6(f) (Amendments and Waivers; Additional
Purchasers). The first sentence of Section 6(f) of the Rights Agreements is
hereby amended to read as follows:
"The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless
the same shall be in writing and signed by the Company and Holders of at
least 75% of the then outstanding Registrable Securities, provided however,
that no amendment that would adversely affect a Holder shall be effective
unless consented to in writing by such Holder."
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6. 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 March 31, 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 April 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.
7. Priority of Registration. Registrable Securities registered in each
Registration Statement filed by the Company pursuant to Section 2(a) of the
Rights Agreements shall be allocated among the Purchasers on a pro rata basis,
based upon the number of Registrable Securities owned by each such Purchaser.
The Company shall register Registrable Securities in the following order: (i)
shares issuable upon conversion of Debentures, (ii) shares issuable upon
exercise of Long Term Warrants and (iii) shares issuable upon exercise of Short
Term Warrants (provide that holders of 10% senior secured debentures shall be
entitled to register shares underlying warrants in lieu of shares underlying
Debentures). For purposes of this Amendment, "Debenture," "Long Term Warrants"
and "Short Term Warrants" shall have the meanings set forth in the Securities
Purchase Agreement entered into by the Company and the respective Purchasers
named therein. Notwithstanding anything herein to the contrary, any Purchaser
may re-prioritize the registration of its Registrable Securities within its
pro-rata allocation of registration rights upon written instructions from such
Purchaser.
8. Short Term Warrant - Effective Date. For purposes of determining the
Termination Date of the Short Term Warrants, the "Effective Date" for a Short
Term Warrant shall be the date that all shares underlying such Short Term
Warrant have been registered on a Registration Statement declared effective by
the Commission.
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9. Registration of Other Securities. Until such time as the Registration
Statements described in Section 2(a) of the Rights Agreements, as amended, have
been declared effective by the Commission, registering all of the Registrable
Securities held by the Purchasers, the Company shall not file any other
registration statement registering shares for its own account or for others
under the Securities Act. Notwithstanding the foregoing, the Company may
register with the Commission securities under Form S-4 or Form S-8 or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans.
10. Effective Date of Amendment. This 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.
11. Issuance of Shares to parties to the August Rights Agreement. In
consideration of the parties to the August Rights Agreement agreeing to enter
into this Amendment, the Company shall issue an aggregate of 112,500 shares of
its common stock to such parties (45,000 shares to Bushido Master Capital Fund,
L.P.; 22,500 shares to Gamma Opportunity Capital Partners, LP Class A; 22,500
shares to Gamma Opportunity Capital Partners, LP Class C and 22,500 shares to
Samir Financial, L.L.C.) (each such party an "August Party" and such shares the
"August Shares") promptly after execution of this Amendment by the August
Parties. The August Shares issued pursuant to this Section 11 shall be deemed to
be "Registrable Securities" under the August Rights Agreement. Unless instructed
in writing by an August Party to the contrary, the August Shares relating to
such August Party shall be included on the second Registration Statement filed
relating to the Registrable Securities and have priority over such August
Party's registration of shares underlying the Long Term Warrants provided that
such inclusion shall not increase such August Party's pro-rata allocation of
registration rights as set forth in Section 7 above.
12. 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
words of like import shall refer to the August Rights Agreement or the October
Rights Agreement, (as applicable) as amended by this Amendment. The August
Rights Agreement and the October Rights Agreement, as amended by this Amendment,
are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
13. 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.
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14. Counterparts. This 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
THE COMPANY:
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INTRAOP MEDICAL CORPORATION
By: /s/ Xxxxxx X. Goer
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Name: Xxxxxx X. Goer
Title: Chief Executive Officer & President
THE PURCHASERS:
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BUSHIDO MASTER CAPITAL FUND, LP
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
GAMMA OPPORTUNITY CAPITAL
PARTNERS, LP CLASS A
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: President/Director
GAMMA OPPORTUNITY CAPITAL
PARTNERS, LP CLASS C
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: President/Director
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SAMIR FINANCIAL, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Manager
REGENMACHER HOLDINGS, LTD.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Director
ABS SOS-PLUS PARTNERS LTD.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: President
DOLPHIN OFFSHORE PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
ALPHA CAPITAL AG
By:
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Name:
Title:
CRESTVIEW CAPITAL MASTER, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Member
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MAGNETAR CAPITAL MASTER FUND, LTD.
By: Magnetar Financial, LLC
Its: Investment Manager
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: General Counsel
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