Exhibit 10.41
AMENDMENT AND WAIVER
TO
EIGHTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT AND WAIVER (this "Amendment") is made as of September ___,
2001, by and among Acusphere, Inc., a Delaware corporation ("Acusphere"), and
those investors listed on Schedule A attached to the Investors' Rights Agreement
(defined below) (the "Investors"), Xxxxxx X. Xxxxx ("Xxxxx"), GATX Ventures,
Inc. ("GATX") and Venture Lending & Leasing III, Inc. ("VLL" and along with
GATX, the "Venture Lenders").
RECITALS
WHEREAS, the Investors possess certain registration and other rights
pursuant to an Eighth Amended and Restated Investors' Rights Agreement dated as
of June 1, 2001, by and among Acusphere and such Investors (the "Investors'
Rights Agreement");
WHEREAS, Acusphere and the Venture Lenders are parties to that certain
Venture Loan and Security Agreement dated as of the date hereof (the "Loan
Agreement"), in consideration of which, among other things, Acusphere shall
issue to the Venture Lenders warrants (the "Venture Lender Warrants") to
purchase up to an aggregate of 136,842 shares of Acusphere's Series F Non-Voting
Convertible Preferred Stock, $.01 par value per share (the "Venture Lender
Warrant Shares"); and
WHEREAS, among the conditions to the consummation of the transactions
contemplated by the Loan Agreement is the execution and delivery of this
Amendment;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and for other good and valuable consideration
Acusphere, each Investor, Xxxxx and each Venture Lender, severally and not
jointly, hereby agree as follows:
1. Amendment.
1.1. Solely for purposes of Sections 2.1, 2.3 through 2.15, 3.11, 4.1, 4.7
and 4.9 of the Investors' Rights Agreement, the term "Registrable Securities"
shall be deemed to include the shares of Common Stock issued or issuable upon
conversion of the Venture Lender Warrant Shares issued or issuable upon exercise
of the Venture Lender Warrants.
2. Waiver and Consent.
2.1 Waiver and Consent. The Investors and all other parties to the
Investors' Rights Agreement hereby (i) consent to the issuance of the Venture
Lender Warrants, including the Venture Lender Warrant Shares issued or issuable
upon exercise of the Venture Lender Warrants and the shares of Common Stock
issued or issuable upon conversion of the Venture Lender Warrant Shares, and
(ii) waive all preemptive rights and rights of first refusal, and all related
1
notice provisions, under all existing agreements with respect to the issuance by
Acusphere of such Venture Lender Warrant, Venture Lender Warrant Shares or
Common Stock.
3. Miscellaneous.
3.1. Effect. Except as amended hereby, the Investors' Rights
Agreement, as amended prior to the date hereof, shall remain in full force
and effect.
3.2. Waiver. This Amendment is effective only in the specific
instance and for the specific purpose for which it is executed and shall
not be considered a waiver or agreement to amend as to any provision of
the Investors' Rights Agreement in the future.
3.3. Defined Terms. All capitalized terms used but not
specifically defined herein shall have the same meanings given such terms
in the Investors' Rights Agreement unless the context clearly indicates or
dictates a contrary meaning.
3.4. Notices. All notices, requests, demands and other
communications provided for in this Amendment shall be delivered in
compliance with Section 4.5 of the Investors' Rights Agreement.
3.5. Governing Law. This Amendment shall be governed by and
construed under the laws of the Commonwealth of Massachusetts as applied
to agreements among Massachusetts residents entered into and to be
performed entirely within Massachusetts.
3.6. 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.
3.7. Titles and Subtitles. The titles and subtitles used in this
Amendment are used for convenience only and are not to be considered in
construing or interpreting this Amendment.
3.8. Severability. If one or more provisions of this Amendment are held to
be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ACUSPHERE, INC.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
GATX VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
VENTURE LENDING & LEASING III, INC.
By: /s/ X.X. Xxxxxxx
-------------------------------------------
Name: X.X. Xxxxxxx
Title: CEO
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-1
ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
By: ARE-QRS Corp.,
its general partner
By:
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-2
MVI MEDICAL VENTURE
INVESTMENTS LIMITED
By: /s/ C.A. Rowlandson
-------------------------------------------
Name: C.A. Rowlandson
Title: Director
BENEFIT CAPITAL MANAGEMENT
CORPORATION (as investment manager for the
Prudential Insurance Company of America
separate account # VCA-GA-5298)
00 Xxx Xxxxxxxxx Xxxx X0-000
Xxxxxxx XX 00000
Attn: Xxx XxXxxxx
By:
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-3
PRISM VENTURE PARTNERS I, L.P.
000 Xxxxxx Xxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
By: Prism Investment Partners, L.P.
By: Prism Venture Partners, L.L.C.
By:
-------------------------------------------
Xxxxxx X. Xxxxxxx
Managing Director
THE CIT GROUP/EQUITY INVESTMENTS, INC.
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
ABS EMPLOYEES' VENTURE FUND L.P.
x/x XX Xxxx Xxxxx
0 Xxxxx Xxxxxx
Mail Stop 1-17-6
Xxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx / Xxxx X'Xxxxxxx
By:
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-4
BANK OF AMERICA VENTURES
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
By: /s/ Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
BA VENTURE PARTNERS II
c/o BankAmerica Ventures
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: General Partner
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-5
ALTA V LIMITED PARTNERSHIP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
By: Alta V Management Partners, L.P.
By: /s/ Xxxxxx XxXxxxxx
-------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: G.P.
CUSTOMS HOUSE PARTNERS
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxx XxXxxxxx
-------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Under Power of Attorney
POLARIS VENTURE PARTNERS, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
By: Polaris Venture Management Co., LLC,
Its General Partner
By: /s/ Xxxxxxxx XxXxxxx
-------------------------------------------
Name:
Title:
POLARIS VENTURE PARTNERS FOUNDERS' FUND, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/ Xxxxxxxx XxXxxxx
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-6
THE VENTURE CAPITAL FUND OF NEW
ENGLAND III, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
By: FH & Co. III, L.P., General Partner
By: /s/ Xxxxxxx X. Xxxxx III
-------------------------------------------
Name: Xxxxxxx X. Xxxxx III
Title: General Partner
TRUSTEES OF BOSTON UNIVERSITY
Attn: Assistant Treasurer
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
By:
-------------------------------------------
Name:
Title:
BANCBOSTON VENTURES, INC.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
PRIVATE EQUITY PORTFOLIO FUND II, LLC
c/o BancBoston Capital
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
By: Fleet National Bank NA,
Its Manager
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-7
TECHNOLOGY FUNDING
PARTNERS III, L.P.,
A Delaware Limited Partnership
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
By: Technology Funding, Inc.
Managing General Partner
By: [illegible signature]
-------------------------------------------
Vice President
TECHNOLOGY FUNDING VENTURE
PARTNERS V, AN AGGRESSIVE GROWTH
FUND L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
By: Technology Funding, Inc.
Managing General Partner
By: [illegible signature]
-------------------------------------------
Vice President
TECHNOLOGY FUNDING MEDICAL
PARTNERS I, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
By: Technology Funding, Inc.
Managing General Partner
By: [illegible signature]
-------------------------------------------
Vice President
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-8
ELAN INTERNATIONAL SERVICES, LTD.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx XX 04
By:
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-9
DEBAR INVESTMENT PARTNERSHIP LLP c/o
Xxxxx Xxxxx
0 Xxxxxxx Xxxx
Xxx, Xxx Xxxx 00000
By:
-------------------------------------------
Name:
Title:
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-10
AUDAX PRIVATE EQUITY FUND, L.P.
c/o Audax Group
000 Xxxxxxxxxx Xxx.
Xxxxx 00
Xxxxxx, XX 00000
By: Audax Private Equity Business, L.L.C.,
Its General Partner
By: Audax Private Equity Business, L.P.,
Its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Member
AUDAX CO-INVEST, L.P.
c/o Audax Group
000 Xxxxxxxxxx Xxx.
Xxxxx 00
Xxxxxx, XX 00000
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Member
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Member
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-11
AUDAX TRUST CO-INVEST, L.P.
c/o Audax Group
000 Xxxxxxxxxx Xxx.
Xxxxx 00
Xxxxxx, XX 00000
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Member
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Member
AFF CO-INVEST, L.P.
c/o Audax Group
000 Xxxxxxxxxx Xxx.
Xxxxx 00
Xxxxxx, XX 00000
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Member
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Member
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-12
AUDAX SPECIAL PURPOSE CO-INVEST, L.P.
c/o Audax Group
000 Xxxxxxxxxx Xxx.
Xxxxx 00
Xxxxxx, XX 00000
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Member
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Member
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-13
XXXXXX XXXXXX CAPITAL PARTNERS, L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
TWP CEO FOUNDERS CIRCLE (AI), L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
TWP CEO FOUNDERS CIRCLE (QP), L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-14
XXXXXX XXXXXX CAPITAL PARTNERS (DUTCH), L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: Xxxxxx Xxxxxx Capital Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
XXXXXX XXXXXX CAPITAL PARTNERS
(DUTCH II), L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners (Dutch), LLC,
its general partner
By: Xxxxxx Xxxxxx Capital Partners LLC,
its managing member
By: Xxxxxx Xxxxxx Capital Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
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XXXXXX XXXXXX CAPITAL PARTNERS EMPLOYEE FUND, L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
TWP 2000 CO-INVESTMENT FUND, L.P.
x/x Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By: Xxxxxx Xxxxxx Capital Partners LLC,
its general partners
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Attorney-in-fact
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
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AEGIS MANAGEMENT CORPORATION
PROFIT SHARING TRUST FBO XXX X. XXXXXXXXXXX
c/o Xxxxxxx River Ventures
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
By:
-------------------------------------------
Name:
Title:
XXXXXX X. XXXXXX
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
--------------------------------------------------
XXXXX XXXXXX
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------
XXXXXX X. XXXXX
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement
S-17
