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Exhibit 4.3
AMENDMENT NO. 1 TO
TENTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS
AMENDMENT NO. 1 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT (this "Amendment"), entered into on April 13, 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 "Tenth Restated
Agreement").
B. 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").
C. 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.
D. The
undersigned Investors desire to amend the definition of
"Registrable Securities" 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.
E. The
undersigned Investors desire to amend Section 1.2(a) of the
Tenth
Restated Agreement to amend the date upon which a demand
registration may be
requested.
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 a
majority 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. Added
Definition of 2006 Bridge Notes in Section 1.1. The undersigned
Investors hereby agree that a new definition shall be added to
Section 1.1 of
the Tenth Restated Agreement to read as follows:
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"2006 Bridge Notes" means the convertible promissory notes made
by
the
Company, dated April 13, 2006, in connection with a bridge
financing
of the
Company of approximately $6,000,000."
2. Revised
Definition of "Warrants." 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, issued to the initial
purchasers
of the 2006 Bridge Notes."
3. Revised
Definition of "Registrable Securities." The undersigned
Investors hereby agree that the definition of "Registrable
Securities" in
Section 1.1 of the Tenth Restated Agreement shall be deleted in its
entirety and
replaced with the following:
""Registrable Securities" means (i) the Common Stock issued in
exchange
for the common stock issued by Retroperfusion Systems, Inc.
("RSI")
upon conversion of the RSI Series B, Series C and Series D
Preferred
Stock and in exchange for the RSI Series E and Series F
Preferred
Stock, (ii) the Common Stock issued upon exercise of the
warrants
issued under the Loan and Warrant Subscription Agreements dated
on or
about August 17, 1993, (iii) the Common Stock issued under the
Loan
and
Warrant Subscription Agreements dated October 1994, (iv) the
Common
Stock
issued or issuable upon conversion of the Series A, Series B,
Series
C-D,
Series E and Series F Preferred Stock, (v) the Common Stock
issuable
upon
exercise of the Warrants issued in connection with the Bridge
Notes,
(vi) the
Common Stock issued or issuable upon conversion of the 2006
Bridge
Notes, (vii) the Common Stock issuable upon exercise of the
Warrants
issued in connection with the 2006 Bridge Notes and (viii) any
Common
Stock of the Company issued or issuable in respect of the above
described
securities upon any stock split, stock dividend,
recapitalization, or similar event, or any Common Stock otherwise
issued
or
issuable with respect to the above described securities;
provided,
however,
that shares of Common Stock or other securities shall not be
treated as
Registrable Securities for purposes of Section 1 hereof if they
have been
sold to or through a broker or dealer or underwriter in a
public
distribution or a public securities transaction."
2. Revised
Section 1.2(a). The undersigned Investors hereby agree that the
lead-in sentence of Section 1.2(a) of the Tenth Restated Agreement
shall be
deleted in its entirety and replaced with the following:
"(a) In case the Company shall receive at any time after the
earlier
of (i)
June 30, 2007 and (ii) six (6) months after the effective date
of
the first
registration statement filed by the Company covering an
offering
of any of
its securities to the public, a written request from Holders
("Initiating Holders") that the Company effect any
registration,
qualification or compliance with respect to at
-2-
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least
forty percent (40%) of the Registrable Securities (or any
lesser
number of
Registrable Securities if the anticipated aggregate
