EX-10.13 9 dex1013.htm ALSIUS CORP AMENDMENT NO.3 TO 10TH AMENDED & RESTATED INVESTOR RIGHTS AGREEMENT Alsius Corp Amendment No.3 to 10th Amended & Restated Investor Rights Agreement

Exhibit 10.13

AMENDMENT NO. 3 TO

TENTH AMENDED AND RESTATED

INVESTOR RIGHTS AGREEMENT

THIS AMENDMENT NO. 3 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Amendment”), entered into on October 2, 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 “Original Agreement”).

B. The Tenth Restated Agreement was amended on April 13, 2006 (the “First Amendment”) and on August 18, 2006 (the “Second Amendment” and together with the Original Agreement and the First Amendment, the “Tenth Restated Agreement”)

C. 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”).

D. 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.

E. The undersigned Investors desire to amend the definitions of “2006 Bridge Notes” and “Warrants” 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.

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 sixty percent (60%) 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. Revised Definition of 2006 Bridge Notes in Section 1.1. The undersigned Investors hereby agree that the definition of 2006 Bridge Notes, which was added to Section 1.1 of

 

-1-


the Original Agreement by the First Amendment and amended by the Second Amendment, shall be deleted in its entirety and replaced with the following:

2006 Bridge Notes” means the convertible promissory notes made by the Company, dated April 13, 2006, August 18, 2006, October 2, 2006 and such other dates as promissory notes may be made by the Company in connection with bridge financings of the Company of approximately $8,700,000 or such increased amount as unanimously approved by the Board of Directors.”

2. Revised Definition of “Warrants in Section 1.1.” 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, August 18, 2006, October 2, 2006 and such other dates on which warrants may be issued to the initial purchasers of the 2006 Bridge Notes.”

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/ William J. Worthen
 

William J. Worthen

President and Chief Executive Officer

Address:

  15770 Laguna Canyon Road, Suite 150 Irvine, CA 92618-3111

 

-2-


MAYFIELD VIII
By:   /s/ W.G. Van Auken
Name:   

Wendell G. Van Auken

 

Title:   

Managing Director

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

MAYFIELD ASSOCIATES FUND III
By:   /s/ W.G. Van Auken
Name:   

Wendell G. Van Auken

 

Title:   

Managing Director

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

 

3


FEVER TRUST
By:   /s/ James Beck
Name:   

James Beck

 

Title:   

Administrative Trustee

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

FEVER TRUST II
By:   /s/ James Beck
Name:   

James Beck

 

Title:   

Administrative Trustee

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

FEVER TRUST III
By:   /s/ James Beck
Name:   

James Beck

 

Title:   

Administrative Trustee

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

 

-4-


HUTTON LIVING TRUST
By:     
Name:      
Title:      
Address:   

2 Santiago Avenue

Atherton, CA 94027

 

-5-


NEW ENTERPRISE ASSOCIATES VII, L.P.
By:  

NEA Partners VII, Limited Partnership

Its General Partner

By:   /s/ C. Richard Kramlich
Name:  

C. Richard Kramlich

 

Title:   

General Partner

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

NEA PRESIDENTS FUND, L.P.
By:  

NEA General Partners, L.P.

Its General Partner

By:   /s/ C. Richard Kramlich
Name:   

C. Richard Kramlich

 

Title:   

General Partner

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

NEA VENTURES 1997, LIMITED PARTNERSHIP
By:   /s/ Cindy Crnkovich
Name:  

Cindy Crnkovich

 

Title:   

Vice President

 

Address:   

2800 Sand Hill Road

Menlo Park, CA 94025

 

-6-


SIGHTLINE HEALTHCARE FUND II, L.P.

By:  

/s/ Arch C. Smith

 

Name:

 

Arch C. Smith

 

Title:

 

Managing Director

 

Address:

 

50 South Sixth Street, Suite 1390

Minneapolis, MN 55402

 

-7-


VERTICAL FUND I, L.P.
By  

Vertical Group, L.P., General Partner

By:

 

/s/ John E. Runnells

 

Name:

 

John E. Runnells

 

Title:

 

General Partner

 

Address:

 

25 DeForest Avenue

Summit, NJ 07901

 

VERTICAL FUND II, L.P.
By  

Vertical Group, L.P., General Partner

By:

 

/s/ John E. Runnells

 

Name:

 

John E. Runnells

 

Title:

 

General Partner

 

Address:

 

25 DeForest Avenue

Summit, NJ 07901

 

-8-


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/ Kurt C. Wheeler

Name:

 

Kurt C. Wheeler

Title:

 

Investment Manager

Address:

 

200 Clarendon Street, 54th Floor

Boston, MA 02116

 

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/ Kurt C. Wheeler

Name:

 

Kurt C. Wheeler

Title:

 

Investment Manager

Address:

 

200 Clarendon Street, 54th Floor

Boston, MA 02116

 

-9-


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/ Kurt C. Wheeler

Name:

 

Kurt C. Wheeler

Title:

 

Investment Manager

Address:

 

200 Clarendon Street, 54th Floor

Boston, MA 02116

 

MPM ASSET MANAGEMENT INVESTORS 2000 B LLC
By:  

/s/ Kurt C. Wheeler

Name:

 

Kurt C. Wheeler

Title:

 

Investment Manager

Address:

 

200 Clarendon Street, 54th Floor

Boston, MA 02116

 

-10-


CHANNEL MEDICAL PARTNERS, L.P.

By:

  /s/ Carol Dorothy Winslow

Name:

  Carol Dorothy Winslow
Title:   Principal

Address:

 

5750 Old Orchard Road, Suite 310

 

Skokie, IL 60077

HUNT VENTURES, L.P.

By:

    

Name:

    
Title:     

Address:

 

Fountain Place

1445 Ross at Field

Dallas, TX 75202-2785

 

-11-


CANAAN EQUITY II L.P.

By:

 

Canaan Equity Partners II LLC

By:

 

/s/ Guy M. Russo

  Member/Manager

Address:

  105 Rowayton Avenue
 

Rowayton, CT 06853

CANAAN EQUITY II L.P. (QP)

By:

  Canaan Equity Partners II LLC

By:

 

/s/ Guy M. Russo

  Member/Manager

Address:

 

105 Rowayton Avenue

 

Rowayton, CT 06853

CANAAN EQUITY II ENTREPRENEURS LLC

By:

 

Canaan Equity Partners II LLC

By:

 

/s/ Guy M. Russo

  Manager

Address:

 

105 Rowayton Avenue

 

Rowayton, CT 06853

 

-12-


CYCAD GROUP, LLC

By:   /s/ K. Leonard Judson
Name:   K. Leonard Judson
Title:   President and Managing Director

Address:

  6187 Carpinteria Ave., Suite 300
 

P.O. BOX 5010

 

Carpinteria, CA 93014

 

-13-