Exhibit 10.43
LIMITED WAIVER AND CONSENT
Reference
is made to (i) the Subscription Agreement, dated as of
December 14, 2004 (the “ Subscription
Agreement ”), among Diametrics Medical, Inc. (the
“ Company ”) and the subscribers parties
thereto (collectively, the “ Noteholders
”), (ii) those Convertible Notes due December 15,
2007 of the Company issued to the Noteholders pursuant to the
Subscription Agreement (collectively, the “
Notes ”), (iii) those Common Stock
Purchase Warrants dated December 15, 2004 of the Company
issued to the Noteholders pursuant to the Subscription Agreement
(collectively, the “ Warrants ”),
(iv) the Security and Pledge Agreement, the Trademark Security
Agreement, the Debenture and the Charge Over Shares, each dated
December 15, 2004 and entered into by the Company for the
benefit of the Noteholders in connection with the Subscription
Agreement (collectively, the “ Security
Documents ”), and (v) the Amendment of warrants,
dated December 15, 2004, among the Company and certain of the
Noteholders (namely, Longview Equity Fund, LP, Longview Fund, LP,
Longview International Equity Fund, LP, and Camden International)
(the “ Amendment ”). Capitalized terms
used herein without definition shall be used as defined in the
Subscription Agreement.
This
Limited Waiver and Consent is being signed in connection with the
issuance of up to $150,000 in aggregate principal amount of
additional convertible notes (the “ New Notes
”) and related warrants to purchase up to 3,750,000 shares of
common stock (the “ New Warrants ”), to
be issued to Mercator Momentum Fund III, L.P., Mercator Momentum
Fund, L.P. and Monarch Pointe Fund, Ltd. (together, the “
Mercator Funds ”) pursuant to the Subscription
Agreement as partial funding of the second tranche described
therein. The Company and each Noteholder hereby agrees as
follows:
1. Provided
the interest and principal payments due on May 1, 2005,
June 1, 2005 and July 1, 2005 pursuant to
Sections 1.1 and 1.2 of the Notes are paid in full on
August 1, 2005, the Noteholders hereby consent to defer the
Company’s obligation to make such interest and principal
payments on such dates, and, in each case, the Noteholders further
consent to defer any right to default interest provided under
Section 1.3 of the Notes with respect to such interest and
principal payments.
2. Provided
that the Registration Statement described in Section 11.1(iv)
and 11.1(v) of the Subscription Agreement and the post-effective
amendments described in Section 9 of the Amendment are filed
with the Commission at the earlier of (i) 30 days after
the filing of the Compan
