EXHIBIT 10.2
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AND WAIVER
THIS AMENDMENT AND WAIVER dated as of May 12, 2003 is by and among
Cambridge Heart, Inc., a Delaware corporation (the "Company"), The Tail Wind
Fund Ltd. ("Tail Wind") and, except as to Paragraph 3 below, Xxxxxx X. Xxxxxxxxx
("Xxxxxxxxx").
WHEREAS, the Company has entered into a certain Registration Rights
Agreement dated December 21, 2001 among the Company, Tail Wind and Khederian
(the "2001 Agreement");
WHEREAS, the Company, Tail Wind and Khederian desire to amend the 2001
Agreement as set forth below;
WHEREAS, the Company has entered into a certain Registration Rights
Agreement among the Company, Tail Wind, Special Situations Private Equity Fund,
L.P., Special Situations Fund III, L.P. and Xxxxxxxx X. Xxxxxx dated June 8,
1999 (the "1999 Agreement");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, enter into
this Amendment and Waiver and agree as follows:
1. Paragraph (c) of Section 2 of the 2001 Agreement is hereby deleted and
amended and restated in its entirety to read as follows:
(c) PAYMENTS BY THE COMPANY. The Company shall use its best
efforts to cause the Registration Statement required to be filed
pursuant to Section 2(a) hereof to become effective as soon as
practicable, but in no event later than the ninetieth (90th) day
following the Closing Date. At the time of effectiveness, the Company
shall ensure such Registration Statement covers at least 2,212,643
Registrable Securities. If (i) such Registration Statement covering
all of the Registrable Securities is not declared effective by the SEC
on or before the one hundred twentieth (120th) day following the
Closing Date (the "REGISTRATION DEADLINE") or (ii) after such
Registration Statement has been declared effective by the SEC, sales
of any of the Registrable Securities required to be covered by such
Registration Statement cannot be made pursuant to such Registration
Statement (by reason of a stop order and/or because the Registration
Statement contains misstatements or omissions due to the Company's
failure to update the Registration Statement or because of any other
reason outside the control of the Investors) at any time after the
Registration Deadline hereunder, then the Company will make payments
to the Investors in such amounts and at such times as shall be
determined pursuant to this Section 2(c) as partial relief for the
damages to the Investors by reason of any such delay in or reduction
of their
ability to sell the Registrable Securities (which remedy shall not be
exclusive of any other remedies available at law or in equity).
Notwithstanding the foregoing, no payments shall accrue pursuant to
this Section 2(c) during any "black-out" period permitted pursuant to
Section 4(f). In the event the Investors fail to provide, within five
(5) business days, information reasonably requested by the Company for
inclusion in the Registration Statement or to provide their approval
(or comments to) the Registration Statement (or any amendment or
supplement thereto), there shall be a day-for-day extension of any
period within which the Company is required to act hereunder, and no
payments shall accrue during such extension pursuant to this Section
2(c). The Company shall pay to each Investor an amount equal to the
product of (i) the aggregate purchase price of the Common Stock
purchased by such Investor (the "AGGREGATE SHARE PRICE"), multiplied
by (ii) two hundredths (.02), for each thirty (30) day period (or
portion thereof) (A) after the Registration Deadline and prior to the
date the Registration Statement covering all of the Registrable
Securities is declared effective by the SEC, and (B) during which
sales of any Registrable Securities cannot be made pursuant to any
such Registration Statement after the Registration Statement has been
declared effective. (For example, if the Registration Statement
covering all of the Registrable Securities is not effective by the
Registration Deadline, the Company would pay $20,000 for each thirty
(30) day period thereafter with respect to each $1,000,000 of
Aggregate Share Price until the Registration Statement becomes
effective.) Such amounts shall be paid in cash. Payments of cash
pursuant hereto shall be made within five (5) days after the end of
each period that gives rise to such obligation, provided that, if any
such period extends for more than thirty (30) days, interim payments
shall be made for each such thirty (30) day period.
2. Tail Wind and Khederian hereby waive their rights under Paragraph (c)
of Section 2 of the 2001 Agreement to receive liquidated damages because the
Common Stock of the Company is not listed or included for quotation on the
Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock Exchange
or the American Stock Exchange. This waiver does not constitute a waiver with
respect to any other liquidated damages provision of Paragraph (c) of Section 2
of the 2001 Agreement.
3. Tail Wind hereby waives its rights under Paragraph (c) of Section 2 of
the 1999 Agreement to receive liquidated damages because the Common Stock of the
Company is not listed or included for quotation on the Nasdaq National Market,
the Nasdaq SmallCap Market, the New York Stock Exchange or the American Stock
Exchange. This waiver does not constitute a waiver with respect to any other
liquidated damages provision of Paragraph (c) of Section 2 of the 1999
Agreement.
4. Except as set forth herein, the 2001 Agreement and the 1999 Agreement
shall remain in full force and effect without modification.
4. This Amendment and Waiver shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Delaware
without regard to its principles of conflicts of laws.
5. This Amendment and Waiver may be executed in more than one counterpart
and as so executed shall constitute a single instrument, notwithstanding that
all of the parties have not signed the same counterpart.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
IN WITNESS WHEREOF, the Company, Tail Wind and Khederian have executed this
Amendment and Waiver as of the date first above written.
CAMBRIDGE HEART, INC.
By: /s Xxxxx X. Xxxxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive Officer
THE TAIL WIND FUND LTD.
By: /s/ Xxxxx Xxxxx
----------------
Name: Xxxxx Xxxxx
Title:
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
[SIGNATURE PAGE TO AMENDMENT AND WAIVER]
