Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement by and among Acusphere, Inc. and Investors

Summary

This agreement, dated September 2001, is an amendment and waiver to the Eighth Amended and Restated Investors' Rights Agreement between Acusphere, Inc., certain investors, Sherri C. Oberg, GATX Ventures, Inc., and Venture Lending & Leasing III, Inc. It modifies the definition of "Registrable Securities" to include shares related to new venture lender warrants and waives preemptive and first refusal rights for these securities. The amendment is required for a related loan transaction and does not affect other provisions of the original agreement.

EX-10.41 18 b38735a1ex10-41.txt AGREEMANT AND WAIVER Exhibit 10.41 AMENDMENT AND WAIVER TO EIGHTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT THIS AMENDMENT AND WAIVER (this "Amendment") is made as of September ___, 2001, by and among Acusphere, Inc., a Delaware corporation ("Acusphere"), and those investors listed on Schedule A attached to the Investors' Rights Agreement (defined below) (the "Investors"), Sherri C. Oberg ("Oberg"), GATX Ventures, Inc. ("GATX") and Venture Lending & Leasing III, Inc. ("VLL" and along with GATX, the "Venture Lenders"). RECITALS WHEREAS, the Investors possess certain registration and other rights pursuant to an Eighth Amended and Restated Investors' Rights Agreement dated as of June 1, 2001, by and among Acusphere and such Investors (the "Investors' Rights Agreement"); WHEREAS, Acusphere and the Venture Lenders are parties to that certain Venture Loan and Security Agreement dated as of the date hereof (the "Loan Agreement"), in consideration of which, among other things, Acusphere shall issue to the Venture Lenders warrants (the "Venture Lender Warrants") to purchase up to an aggregate of 136,842 shares of Acusphere's Series F Non-Voting Convertible Preferred Stock, $.01 par value per share (the "Venture Lender Warrant Shares"); and WHEREAS, among the conditions to the consummation of the transactions contemplated by the Loan Agreement is the execution and delivery of this Amendment; NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter set forth and for other good and valuable consideration Acusphere, each Investor, Oberg and each Venture Lender, severally and not jointly, hereby agree as follows: 1. Amendment. 1.1. Solely for purposes of Sections 2.1, 2.3 through 2.15, 3.11, 4.1, 4.7 and 4.9 of the Investors' Rights Agreement, the term "Registrable Securities" shall be deemed to include the shares of Common Stock issued or issuable upon conversion of the Venture Lender Warrant Shares issued or issuable upon exercise of the Venture Lender Warrants. 2. Waiver and Consent. 2.1 Waiver and Consent. The Investors and all other parties to the Investors' Rights Agreement hereby (i) consent to the issuance of the Venture Lender Warrants, including the Venture Lender Warrant Shares issued or issuable upon exercise of the Venture Lender Warrants and the shares of Common Stock issued or issuable upon conversion of the Venture Lender Warrant Shares, and (ii) waive all preemptive rights and rights of first refusal, and all related 1 notice provisions, under all existing agreements with respect to the issuance by Acusphere of such Venture Lender Warrant, Venture Lender Warrant Shares or Common Stock. 3. Miscellaneous. 3.1. Effect. Except as amended hereby, the Investors' Rights Agreement, as amended prior to the date hereof, shall remain in full force and effect. 3.2. Waiver. This Amendment is effective only in the specific instance and for the specific purpose for which it is executed and shall not be considered a waiver or agreement to amend as to any provision of the Investors' Rights Agreement in the future. 3.3. Defined Terms. All capitalized terms used but not specifically defined herein shall have the same meanings given such terms in the Investors' Rights Agreement unless the context clearly indicates or dictates a contrary meaning. 3.4. Notices. All notices, requests, demands and other communications provided for in this Amendment shall be delivered in compliance with Section 4.5 of the Investors' Rights Agreement. 3.5. Governing Law. This Amendment shall be governed by and construed under the laws of the Commonwealth of Massachusetts as applied to agreements among Massachusetts residents entered into and to be performed entirely within Massachusetts. 3.6. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 3.7. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment. 3.8. Severability. If one or more provisions of this Amendment are held to be unenforceable under applicable law, such provision shall be excluded from this Amendment and the balance of the Amendment shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement 2 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ACUSPHERE, INC. 38 Sidney Street Cambridge, MA 02139 By: /s/ Sherri Oberg ------------------------------------------- Sherri C. Oberg President and Chief Executive Officer GATX VENTURES, INC. By: /s/ Robert D. Pomeroy, Jr. ------------------------------------------- Name: Robert D. Pomeroy, Jr. Title: Senior Vice President VENTURE LENDING & LEASING III, INC. By: /s/ R.W. Swenson ------------------------------------------- Name: R.W. Swenson Title: CEO Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-1 ALEXANDRIA REAL ESTATE EQUITIES, L.P., By: ARE-QRS Corp., its general partner By: ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-2 MVI MEDICAL VENTURE INVESTMENTS LIMITED By: /s/ C.A. Rowlandson ------------------------------------------- Name: C.A. Rowlandson Title: Director BENEFIT CAPITAL MANAGEMENT CORPORATION (as investment manager for the Prudential Insurance Company of America separate account # VCA-GA-5298) 39 Old Ridgebury Road E2-278 Danbury CT 06817 Attn: Sue DeCarlo By: ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-3 PRISM VENTURE PARTNERS I, L.P. 100 Lowder Brook Drive Suite 2500 Westwood, MA 02090 By: Prism Investment Partners, L.P. By: Prism Venture Partners, L.L.C. By: ------------------------------------------- Laurie J. Thomsen Managing Director THE CIT GROUP/EQUITY INVESTMENTS, INC. 44 Whippany Road Morristown, NJ 07960 By: /s/ James Glasheen ------------------------------------------- Name: James Glasheen Title: Director ABS EMPLOYEES' VENTURE FUND L.P. c/o BT Alex Brown 1 South Street Mail Stop 1-17-6 Baltimore, MD ###-###-#### Attn: Dan Gunter / Rick O'Connell By: ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-4 BANK OF AMERICA VENTURES 950 Tower Lane, Suite 700 Foster City, CA 94404 By: /s/ Louis Bock ------------------------------------------- Name: Louis Bock Title: Principal BA VENTURE PARTNERS II c/o BankAmerica Ventures 950 Tower Lane, Suite 700 Foster City, CA 94404 By: /s/ Robert Obuch ------------------------------------------- Name: Robert Obuch Title: General Partner Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-5 ALTA V LIMITED PARTNERSHIP 200 Clarendon Street 51st Floor Boston, MA 02116 By: Alta V Management Partners, L.P. By: /s/ Eileen McCarthy ------------------------------------------- Name: Eileen McCarthy Title: G.P. CUSTOMS HOUSE PARTNERS 200 Clarendon Street 51st Floor Boston, MA 02116 By: /s/ Eileen McCarthy ------------------------------------------- Name: Eileen McCarthy Title: Under Power of Attorney POLARIS VENTURE PARTNERS, L.P. 1000 Winter Street Suite 3350 Waltham, MA 02154 By: Polaris Venture Management Co., LLC, Its General Partner By: /s/ Terrance McGuire ------------------------------------------- Name: Title: POLARIS VENTURE PARTNERS FOUNDERS' FUND, L.P. 1000 Winter Street Suite 3350 Waltham, MA 02154 By: Polaris Venture Management Co., LLC Its General Partner By: /s/ Terrance McGuire ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-6 THE VENTURE CAPITAL FUND OF NEW ENGLAND III, L.P. 160 Federal Street, 23rd Floor Boston, MA 02110 By: FH & Co. III, L.P., General Partner By: /s/ William C. Mills III ------------------------------------------- Name: William C. Mills III Title: General Partner TRUSTEES OF BOSTON UNIVERSITY Attn: Assistant Treasurer 108 Bay State Road Boston, MA 02215 By: ------------------------------------------- Name: Title: BANCBOSTON VENTURES, INC. 175 Federal Street Boston, MA 02110 By: /s/ Marcia T. Bates ------------------------------------------- Name: Marcia T. Bates Title: Managing Director PRIVATE EQUITY PORTFOLIO FUND II, LLC c/o BancBoston Capital 175 Federal Street Boston, MA 02110 By: Fleet National Bank NA, Its Manager By: /s/ Cynthia K. Duda ------------------------------------------- Name: Cynthia K. Duda Title: Director Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-7 TECHNOLOGY FUNDING PARTNERS III, L.P., A Delaware Limited Partnership 2000 Alameda de las Pulgas San Mateo, CA 94403 By: Technology Funding, Inc. Managing General Partner By: [illegible signature] ------------------------------------------- Vice President TECHNOLOGY FUNDING VENTURE PARTNERS V, AN AGGRESSIVE GROWTH FUND L.P. 2000 Alameda de las Pulgas San Mateo, CA 94403 By: Technology Funding, Inc. Managing General Partner By: [illegible signature] ------------------------------------------- Vice President TECHNOLOGY FUNDING MEDICAL PARTNERS I, L.P. 2000 Alameda de las Pulgas San Mateo, CA 94403 By: Technology Funding, Inc. Managing General Partner By: [illegible signature] ------------------------------------------- Vice President Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-8 ELAN INTERNATIONAL SERVICES, LTD. 102 St. James Court Flatts, Smiths Parish Bermuda FL 04 By: ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-9 DEBAR INVESTMENT PARTNERSHIP LLP c/o David Barry 2 Puritan Road Rye, New York 10580 By: ------------------------------------------- Name: Title: Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-10 AUDAX PRIVATE EQUITY FUND, L.P. c/o Audax Group 101 Huntington Ave. Floor 24 Boston, MA 02199 By: Audax Private Equity Business, L.L.C., Its General Partner By: Audax Private Equity Business, L.P., Its Managing Member By: /s/ Geoffrey S. Rehnert ------------------------------------------- Name: Geoffrey S. Rehnert Title: Authorized Member AUDAX CO-INVEST, L.P. c/o Audax Group 101 Huntington Ave. Floor 24 Boston, MA 02199 By: 101 Huntington Holdings, LLC Title: General Partner By: /s/ Geoffrey S. Rehnert ------------------------------------------- Name: Geoffrey S. Rehnert Title: Authorized Member By: /s/ Marc B. Wolpow ------------------------------------------- Name: Marc B. Wolpow Title: Authorized Member Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-11 AUDAX TRUST CO-INVEST, L.P. c/o Audax Group 101 Huntington Ave. Floor 24 Boston, MA 02199 By: 101 Huntington Holdings, LLC Title: General Partner By: /s/ Geoffrey S. Rehnert ------------------------------------------- Name: Geoffrey S. Rehnert Title: Authorized Member By: /s/ Marc B. Wolpow ------------------------------------------- Name: Marc B. Wolpow Title: Authorized Member AFF CO-INVEST, L.P. c/o Audax Group 101 Huntington Ave. Floor 24 Boston, MA 02199 By: 101 Huntington Holdings, LLC Title: General Partner By: /s/ Geoffrey S. Rehnert ------------------------------------------- Name: Geoffrey S. Rehnert Title: Authorized Member By: /s/ Marc B. Wolpow ------------------------------------------- Name: Marc B. Wolpow Title: Authorized Member Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-12 AUDAX SPECIAL PURPOSE CO-INVEST, L.P. c/o Audax Group 101 Huntington Ave. Floor 24 Boston, MA 02199 By: 101 Huntington Holdings, LLC Title: General Partner By: /s/ Geoffrey S. Rehnert ------------------------------------------- Name: Geoffrey S. Rehnert Title: Authorized Member By: /s/ Marc B. Wolpow ------------------------------------------- Name: Marc B. Wolpow Title: Authorized Member Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-13 THOMAS WEISEL CAPITAL PARTNERS, L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partner By: Thomas Weisel Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact TWP CEO FOUNDERS CIRCLE (AI), L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partner By: Thomas Weisel Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact TWP CEO FOUNDERS CIRCLE (QP), L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partner By: Thomas Weisel Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-14 THOMAS WEISEL CAPITAL PARTNERS (DUTCH), L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partner By: Thomas Weisel Partners Group LLC, its managing member By: Thomas Weisel Capital Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact THOMAS WEISEL CAPITAL PARTNERS (DUTCH II), L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners (Dutch), LLC, its general partner By: Thomas Weisel Capital Partners LLC, its managing member By: Thomas Weisel Capital Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-15 THOMAS WEISEL CAPITAL PARTNERS EMPLOYEE FUND, L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partner By: Thomas Weisel Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact TWP 2000 CO-INVESTMENT FUND, L.P. c/o One Montgomery Street, Suite 3700 San Francisco, California 94104 By: Thomas Weisel Capital Partners LLC, its general partners By: Thomas Weisel Partners Group LLC, its managing member By: /s/ Daniel Dross ------------------------------------------- Daniel Dross Attorney-in-fact Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-16 AEGIS MANAGEMENT CORPORATION PROFIT SHARING TRUST FBO TED R. DINTERSMITH c/o Charles River Ventures Bay Colony Corporate Center 1000 Winter Street Suite 3300 Waltham, MA 02154 By: ------------------------------------------- Name: Title: ROBERT S. LANGER 77 Lombard Street Newton, MA 02158 -------------------------------------------------- DAVID NORMAN 26 Turtle Rock Court Tiburon, CA 94920 -------------------------------------------------- SHERRI C. OBERG 157 Bristol Road Wellesley, MA 02181 /s/ Sherri C. Oberg -------------------------------------------------- Amendment and Waiver to Eighth Amended and Restated Investors' Rights Agreement S-17