Exhibit 10.2
AMENDMENT NO. 2 TO
SECURITIES PURCHASE
AGREEMENT
THIS AMENDMENT NO. 2 TO SECURITIES
PURCHASE AGREEMENT, dated as of August 4, 2009 (this “
Amendment ”), is entered into by and among the
undersigned to amend the SECURITIES PURCHASE AGREEMENT, dated as of
January 20, 2009 (as the same may be amended, restated or
otherwise modified and in effect from time to time, the “
Securities Purchase Agreement ”), by and among
Anesiva, Inc., a Delaware corporation (the “ Company
”), and the investors from time to time party thereto (each
an “ Investor ” and collectively, the “
Investors ”) and each of the securities issued
pursuant thereto. Unless defined herein, capitalized terms used
herein shall have the meanings provided to such terms in the
Securities Purchase Agreement.
R E C I T A L S
:
A. WHEREAS, the Company and the
Investors are party to the Securities Purchase Agreement, pursuant
to which the Investors purchased the Securities from the Company on
the terms set forth therein;
B. WHEREAS, pursuant to
Section 12.7 of the Securities Purchase Agreement, the Company
and the Investors may amend any term of the Securities Purchase
Agreement, the Securities and the Related Documents with the
written consent of the Company and Investors holding at least sixty
percent (60%) of the aggregate unpaid principal of the then
outstanding Securities (the “ Majority Investors
”);
C. WHEREAS, the Company, Arca
Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of the Company (“ Merger Sub ”),
Arcion Therapeutics, Inc. (“ Arcion ”) and each
of the stockholders of Arcion are concurrently entering into an
Agreement and Plan of Merger, dated as of even date herewith (as
such agreement may be subsequently amended or modified, the “
Merger Agreement ”), providing for the merger of
Merger Sub with and into Arcion (the “ Merger
”); and
D. WHEREAS, the Company and the
Investors party hereto, which Investors constitute the Majority
Investors, desire to make certain amendments to the Securities
Purchase Agreement and the Securities in connection with the Merger
as set forth below.
NOW THEREFORE, in consideration of
the mutual conditions and agreements set forth in the Securities
Purchase Agreement and this Amendment and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Amendments to the Securities
Purchase Agreement . Effective upon the execution and delivery
of this Amendment by the Company and the Majority Investors, the
Securities Purchase Agreement is hereby amended as
follows:
(a) The following legend shall be
affixed to the top of the first page of the Securities Purchase
Agreement:
This agreement and the rights and
obligations evidenced hereby are subordinated in the manner and to
the extent set forth in that certain Subordination Agreement, dated
as of May 18, 2009, by and among Anesiva, Inc., a Delaware
corporation (the “ Company ”), AlgoRx
Pharmaceuticals, Inc., a Delaware corporation (the “
Guarantor ”), Arcion Therapeutics, Inc. (the “
Senior Lender ”) and the Investors (the “
Subordination Agreement ”), to the indebtedness
(including interest) owed by the Company and the Guarantor pursuant
to that certain Note Purchase Agreement, dated as of May 18,
2009,
by and among the Company, the
Guarantor and the Senior Lender (the “ Senior Note
Purchase Agreement ”) as such Senior Note Purchase
Agreement has been and hereafter may be amended, supplemented or
otherwise modified from time to time; and each holder of the
securities issued hereunder, by its acceptance hereof or thereof,
irrevocably agrees to be bound by the provisions of the
Subordination Agreement.
(b) The first sentence of
Section 8.2 of the Securities Purchase Agreement is hereby
amended and restated in its entirety as follows:
In the event of a Change of Control
of the Company, to the extent permitted by the Subordination
Agreement, the Company agrees to pay to the Investors an amount
equal to seven (7) times the sum of the outstanding principal
amount of the Securities, plus all accrued but unpaid returns
thereon; provided, however , that in connection with a
Change of Control pursuant to the Agreement and Plan of Merger,
dated as of August 4, 2009, by and between the Company, Arca
Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of the Company (“ Merger Sub ”),
Arcion Therapeutics, Inc. (“ Arcion ”) and each
of the stockholders of Arcion providing for the merger of Merger
Sub with and into Arcion, to the extent permitted by the
Subordination Agreement, the Company agrees to redeem all of the
outstanding Securities at a redemption price in cash equal to only
100% of the aggregate principal amount of the Securities being
redeemed, plus all accrued but unpaid returns thereon through the
date of redemption.
2. Amendments to the
Securities . Effective upon the execution and delivery of this
Amendment by the Company and the Majority Investors, (x) each
Security outstanding pursuant to the Securities Purchase Agreement
and (y) the form of the Security attached as Exhibit A to the
Securities Purchase Agreement, is hereby amended as
follows:
(a) The following legend shall be
affixed thereto:
This security and the rights and
obligations evidenced hereby are subordinated in the manner and to
the extent set forth in that certain Subordination Agreement, dated
as of May 18, 2009, by and among Anesiva, Inc., a Delaware
corporation (the “ Company ”), AlgoRx
Pharmaceuticals, Inc., a Delaware corporation (the “
Guarantor ”), Arcion Therapeutics, Inc. (the “
Senior Lender ”) and the Investors (the “
Subordination Agreement ”), to the indebtedness
(including interest) owed by the Company and the Guarantor pursuant
to that certain Note Purchase Agreement, dated as of May 18,
2009, by and among the Company, the Guarantor and the Senior Lender
(the “ Senior Note Purchase Agreement ”) as such
Senior Note Purchase Agreement has been and hereafter may be
amended, supplemented or otherwise modified from time to time; and
each holder of this security, by its acceptance hereof, irrevocably
agrees to be bound by the provisions of the Subordination
Agreement.
(b) The third paragraph thereof is
hereby amended and restated in its entirety as follows:
Unless earlier paid pursuant to the
terms hereof or the Purchase Agreement or accelerated in connection
with an Event of Default, subject to the terms of the Purchase
Agreement, the outstanding principal and accrued but unpaid returns
shall be immediately due and payable at any time at the request of
the Majority Investors on or after October 20, 2009 (the
“ Maturity Date ”). The Company shall not have
the right to pre-pay the amounts due under this Security prior to
the Maturity Date without the prior written consent of the Majority
Holders; provided, however , that to the extent permitted by
the Subordination
-2-
Agreement, the Company may, in
connection with the Agreement and Plan of Merger, dated as of
August 4, 2009 (as such agreement may be subsequently amended
or modified, the “ Merger Agreement ”) by and
between the Company, Arca Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company (“
Merger Sub ”), Arcion Therapeutics, Inc. (“
Arcion ”) and each of the stockholders of Arcion
providing for the merger of Merger Sub with and into Arcion (the
“ Merger ”), at any time on or following the
consummation of the Merger, voluntarily redeem the Securities, in
whole or in part, at a redemption price in cash equal to 100% of
the aggregate principal amount of the Securities being redeemed,
plus all accrued and unpaid returns on the amount so redeemed
through the date of redemption. The pre-payment of this Security,
other than in connection with the Merger, shall be deemed to be a
Change of Control and shall require the payment by the Company to
the Holder of the amounts set forth in the Purchase
Agreement.
3. References . On and after
the effectiveness of this Amendment, (a) each reference in the
Securities Purchase Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like
import referring to the Securities Purchase Agreement, and each
reference i
