Exhibit 10.11
FIRST AMENDMENT AND
CONSENT
TO
LOAN AND SECURITY
AGREEMENT
THIS FIRST AMENDMENT AND
CONSENT to Loan and
Security Agreement (this “Amendment”) is entered into
this 21st day of January, 2009, by and between Silicon Valley
Bank (“Bank”) and ARCA biopharma, Inc.
(f/k/a ARCA Discovery, Inc.), a Delaware corporation
(“Borrower”) whose address is 8001 Arista Place, Suite
200, Broomfield, CO 80021.
RECITALS
A. Bank and Borrower have entered into that certain
Loan and Security Agreement dated as of July 17, 2007 (as the
same may from time to time be amended, modified, supplemented or
restated, the “Loan Agreement”).
B. Bank has extended credit to Borrower for the
purposes permitted in the Loan Agreement.
C. Borrower has requested that Bank amend the Loan
Agreement to (i) revise the maturity date of the outstanding
GC Line B Advances and (ii) make certain other revisions to
the Loan Agreement as more fully set forth herein.
D. Borrower has also requested that Bank consent to
the merger of a wholly-owned subsidiary of Nuvelo, Inc., a Delaware
corporation (“Nuvelo”), with and into Borrower, with
Borrower being the surviving corporation, pursuant to that certain
Agreement and Plan of Reorganization, dated September 24,
2008, as amended by that certain Amendment No. 1 to Agreement
and Plan of Reorganization, dated October 28, 2008 (as may be
further amended, modified, supplemented or restate from time to
time, the “Merger Agreement”, with the transactions
contemplated under such Merger Agreement being hereinafter referred
to as, the “Merger Transactions”). Borrower has also
requested that the Bank consent to the change of Borrower’s
name to ARCA biopharma Colorado, Inc. (the “Name
Change”).
E. Bank has agreed to so amend certain provisions
of the Loan Agreement and consent to the Merger Transactions, but
only to the extent, in accordance with the terms, subject to the
conditions and in reliance upon the representations and warranties
set forth below.
A GREEMENT
N OW ,
T HEREFORE
, in consideration of the foregoing recitals and
other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. Definitions.
Capitalized terms used but not
defined in this Amendment shall have the meanings given to them in
the Loan Agreement.
2. Amendments to Loan
Agreement.
2.1 Section 6.2 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
“ 6.2 Financial Statements,
Reports, Certificates . Deliver to Bank: (i) within five
(5) days of delivery, copies of all statements, reports and
notices made
generally available to the security
holders or to any holders of Subordinated Debt of Borrower’s
parent company, Nuvelo, Inc.(“Parent”) ,
(ii) within five (5) days of filing, all reports on Form
10-K, 10-Q and 8-K filed with the Securities and Exchange
Commission for Borrower’s parent company, Nuvelo, Inc. (the
“Parent”) or a link thereto on Parent’s or
another website on the Internet; (iii) a prompt report of any
legal actions pending or threatened against Borrower or any of its
Subsidiaries that could result in damages or costs to Borrower or
any of its Subsidiaries of One Hundred Thousand Dollars ($100,000)
or more; and (iv) budgets, sales projections,
operating plans and other financial information reasonably
requested by Bank.”
2.2 The definition of “GC Line B Tranche Two
maturity Date” in Section 13.1 of the Loan Agreement is
hereby deleted in its entirety and replaced with the
following:
“ GC Line B Tranche Two
Maturity Date ” is March 23, 2009.
2.3 Borrower agrees that the Initial Warrant and
Additional Warrants (collectively, the “Warrants”)
issued to Bank pursuant to Section 6.8 of the Loan Agreement
will be assumed by Nuvelo. Such Warrants shall be exercisable for
the same securities, cash, and property as would be payable for the
shares issuable upon exercise of the Warrants as if such shares
were outstanding on the record date for the Merger Transactions and
subsequent closing. The Warrant Price (as defined in the Warrants)
shall be adjusted accordingly.
3. Consent.
Subject to the conditions set forth
in this Amendment, Bank hereby consents to the Merger Transactions
and Name Change and agrees that the Merger Transactions and the
Name Change, in and of themselves, shall not constitute an Event of
Default pursuant to Sections 7.2 or 7.3 of the Loan Agreement.
Borrower will deliver immediate notice to Bank if the M
