Exhibit 10.87
AMENDMENT NO. 1 TO
TO SECURITIES PURCHASE
AGREEMENT
This Amendment No. 1 to
Securities Purchase Agreement is entered into as of April 1,
2009 (the “Amendment”) by and between certain of the
investors set forth on Schedule 1 (the “Investors”) of
the Securities Purchase Agreement, dated January 20, 2009 (the
“Agreement”), which Investors constitute the Majority
Investors, and Anesiva, Inc. (the “Company”). All
capitalized terms not defined herein shall have the respective
meanings set forth in the Agreement.
RECITALS
Whereas, the Company and Investors
are parties to the Agreement.
Whereas, pursuant to
Section 12.7 of the Agreement, any term of the Agreement may
be amended with the written consent of the Company and the Majority
Investors.
Whereas, the Company is in the
process of undertaking the rights offering as contemplated in
Section 7.10 of the Agreement (the “Rights
Offering”).
Whereas, the Investors wish to amend
the Agreement to provide for the integration of rights of the
purchasers in the Rights Offering and the rights of the
Investors.
NOW, THEREFORE, for consideration
duly received and acknowledged as adequate by the Investors, the
parties agrees as follows:
1. The following is hereby added to
Section 7.10 of the Agreement:
“In the event not all of the
principal amount of Securities offered in a rights offering
(“Rights Securities”) are purchased by the
Company’s stockholders (who are not Investors) and an
Investor chooses to purchase a portion of the principal amount of
such remaining Rights Securities, such Investor may purchase up to
its pro rata amount of the principal amount of Rights Securities
not purchased by the stockholders. For the purposes of this
Section 7.10, an Investor’s pro rata amount is equal to
the amount of the remaining Rights Securities multiplied by a
fraction, the numerator of which is the principal amount of
Securities issued pursuant to this Agreement held by such Investor
and the denominator of which is the total principal amount of
Securities issued pursuant to this Agreement held by all
Investors.”
2. The Agreement is hereby amended
to include Section 8.16 as follows:
“ 8.16 Pari Passu
Treatment. The Investors agree that in the event: (i) the
Company pays the Securities prior to the maturity of the Rights
Securities, (ii) a Change of Control occurs, (iii) the
Investors foreclose on or enforce their security interest in the
Collateral securing the Securities, or (iv) the Securities are
accelerated due to an Event of Default and such acceleration is not
annulled within 30 days after written notice of the Event of
Default, then (a) for purposes of the security interest in the
Collateral and priority of payment, the holders of the Rights
Securities and the Investors shall be treated on a pari passu
basis, and
(b) if there is insufficient funds
to make payment in full to the holders of the Rights Securities and
the Investors, then the available assets and/or consideration shall
be distributed among the holders of the Rights Securities and the
Investors ratably in proportion to the full amounts to which they
otherwise respectively would be entitled.”
3. The Agreement is hereby amended
to include Section 8.17 as follows:
“ 8.17 Prepayment of Rights
Securities. Except with the prior written approval of the
Majority Investors, the Company shall not repay the Rights
Securities prior to their maturity date, except in the event of an
acceleration of the Rights Securities as a result of a change of
control or event of default, as those terms are defined in the
rights offering documentation to be filed with the Securities and
Exchange Commission.”
4. The Agreement, as amended hereby,
shall be and remain in full force and effect in accordance with its
terms. Except as expressly set forth herein, the execution,
delivery, and performance of this Amendment shall not operate as a
waiver of, or as an amendment of, any right, power
