AVINGER, INC. AMENDMENT NO. 1 TO NOTE AND WARRANT PURCHASE AGREEMENT
Exhibit 10.19
XXXXXXX, INC.
AMENDMENT NO. 1 TO NOTE AND WARRANT PURCHASE AGREEMENT
This Amendment No. 1 to Note Purchase Agreement (this “Amendment”) is made as of May 6, 2014 by and among Xxxxxxx, Inc., a Delaware corporation (the “Company”), and holders of an outstanding convertible promissory note (each, a “Note” and, collectively, the “Notes”) issued pursuant to the Note and Warrant Purchase Agreement (the “Purchase Agreement”) dated October 29, 2013 (collectively, all of such holders, the “Investors”).
WHEREAS, the Company and certain Investors want to amend the Purchase Agreement to increase extend the period for investments made pursuant to the Purchase Agreement and extend the period during which Additional Closings (as defined under the Purchase Agreement) may occur.
WHEREAS, pursuant to Section 8(a) of the Purchase Agreement, the Company and the Investors holding greater than fifty (50%) of the outstanding principal amount of the Notes issued pursuant to the Purchase Agreement as of immediately prior to the date hereof (a “Majority in Interest”) wish to amend the Purchase Agreement to facilitate additional capital raising within the Company as set forth below.
THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Amendment. Effective as of the Effective Time, the reference to 15 calendar days in Section 1 (c)(ii) of the Purchase Agreement shall be replaced with 1 year such that the Company has the authority to sell and issue up to $25,000,000 of Notes under the Purchase Agreement at any time up to and including the end of the day on October 29, 2014 according to the terms and conditions contained in the Purchase Agreement.
2. Effective Time. This Amendment is effective upon such time that the Investors representing a Majority in Interest execute this Amendment (the “Effective Time”).
3. Full Force and Effect. To the extent not expressly amended hereby, the Purchase Agreement remains in full force and effect.
4. Entire Agreement. This Amendment, together with the Purchase Agreement (to the extent not amended hereby) and the Notes and the related warrants issued pursuant to the Purchase Agreement and all exhibits thereto, represent the entire agreement of the parties and shall supersede any and all previous contracts, arrangements or understandings between the parties with respect to the subject matter herein.
5. Governing Law. This Amendment shall be governed by and construed and interpreted under the laws of the State of California without reference to conflicts of law principles.
6. Modification. This Amendment may not be altered, amended or modified in any way except by written consent of the Company and the Investors representing a Majority in Interest. Waiver of any term or provision of this Amendment or forbearance to enforce any term or provision
by any party shall not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Amendment.
7. Counterparts. This Amendment may be executed in counterparts, each of which shall be declared an original, but all of which together shall constitute one and the same instrument.
8. Facsimile. This Amendment may be executed by facsimile.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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COMPANY: | |
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XXXXXXX, INC. | |
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a Delaware corporation | |
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By: |
/s/ Xxxx X. Xxxxxxx |
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Name: Xxxx X. Xxxxxxx, Ph.D., M.D. | |
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Title: Chief Executive Officer | |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | ||
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XXXXX VENTURE GROUP IX, LLC | ||
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By: |
/s/ Xxxxxx Xxxxx | |
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Name: |
Xxxxxx Xxxxx | |
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Title: |
Managing Member | |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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MUZZY HOLDINGS, LLC | |
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By: |
/s/ Xxxxx X Xxxxx |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Managing Member |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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MZ PARTNERS, LLC | |
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By: |
/s/ Xxxxx X Xxxxx |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
President |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXX XXXXXXX | |
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By: |
/s/ Xxxxx X. XxXxxxx |
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Name: |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXX AND XXXXXXX MILGARD LIVING TRUST U/T/D/ 3/14/2001 AS AMENDED | |
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By: |
/s/ Xxx Milgard |
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Name: |
Xxx Milgard |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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BWO, LLC | |
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By: |
/s/ Xxxxx X. Xxxxx |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Manager |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXXX XXXXX XXXXXXX 2008 IRREVOCABLE TRUST | |
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By: |
/s/ X. X. Xxxxx |
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Name: |
X. X. Xxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXX XXXXXX XXXXXXX 2008 IRREVOCABLE TRUST | |
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By: |
/s/ Xxxx X. Xxxxxxx |
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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M & A XXXXXXX FAMILY LIVING TRUST | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Trustee |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXX X. RENYI | |
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By: |
/s/ Xxxxxx X. Renyi |
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Name: |
Xxxxxx X. Renyi |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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SN INVESTORS LLC | |
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By: |
/s/ XX Xxxxxx |
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Name: |
XX Xxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXX XXXXXXX | |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: |
Xxxx Xxxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXXX XXXXXXXX | |
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By: |
/s/ Xxxxxxx Xxxxxxxx |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXX X. XXXXXXX | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Investor |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXXX INVESTMENTS, LLC | |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
President |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XX. XXXXXX XXXXXXXXXX | |
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By: |
/s/ Xxxxxx Xxxxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxxxx |
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Title: |
MD |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXXXX FAMILY TRUST DTD DEC. 1981 | |
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By: |
/s/ XX XxXxxxxx |
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Name: |
XX XxXxxxxx |
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Title: |
Trustee |
(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXX XXXXXXX | |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the Effective Date.
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INVESTORS: | |
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XXXXXX XXXXXXXX | |
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
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(Signature Page to Xxxxxxx, Inc. Amendment No. 1 to Note and Warrant Purchase Agreement)
