AMENDMENT

EX-10.16 9 exhibit8.htm EX-10.16 EX-10.16

EXHIBIT 10.16

AMENDMENT

Reference is made to (i) the Subscription Agreement, dated as of May 28, 2004 (the “Series G Subscription Agreement”), among Diametrics Medical, Inc. (the “Company”) and BCC Acquisition II, LLC, Mercator Momentum Fund, LP, Mercator Momentum Fund III LP and Monarch Pointe, Ltd. (collectively, the “Purchasers”), and (ii) the Common Stock Purchase Warrants of the Company dated May 28, 2004, issued to the Purchasers (the “Series G Warrants”). Schedule A hereto sets forth the number of Series G Warrants currently held by the Purchasers.

This Amendment is being signed in connection with and as a condition precedent to the issuance of up to $3,000,000 in aggregate principal amount of convertible notes (the “Convertible Notes”) to be issued pursuant to that certain Subscription Agreement dated December 14, 2004 among the Company and the purchasers parties thereto.

The Company and each Purchaser hereby agree as follows:

1. Paragraph 1.1 of the Series G Warrants is hereby amended in its entirety to read as follows:

“This Warrant is exercisable in whole or in part (but not as to any fractional share of Common Stock), at any time and from time to time, but prior to 6:00 p.m. on the Expiration Date set forth above.”

2. Paragraph 1.2 of the Series G Warrants is hereby amended in its entirety to provide that the exercise price shall be $0.025 per share.

3. Each Purchaser acknowledges and agrees that any pledge of assets by the Company in connection the issuance of the Convertible Notes shall not be deemed as a liquidation pursuant to paragraph (d)(iii) of the Certificate of Designations of Series G Convertible Preferred Stock of the Company.

4. Except as hereby amended, all other terms of the Series G Subscription Agreement and the Series G Warrants remain in full force and effect.

5. The validity, construction and enforceability of this Amendment shall be governed by the internal law of the State of Minnesota, without regard to conflict of law principles.

6. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same document.

7. This Amendment shall be binding upon the Company, the Purchasers and their respective successors and assigns, and shall inure to the sole benefit of the Company, the Purchasers and the successors and assigns of the Company and the Purchasers.

     
Dated: December 15, 2004
  DIAMETRICS MEDICAL, INC.
By: /s/ David B. Kaysen
Name: David B. Kaysen
Title: President and CEO
 
    
 
   BCC ACQUISITION II, LLC
By: /s/ Fred Craves
Name: Fred Craves
Title: Managing Director, Bay City Capital
Management LLC
 
    
 
   MERCATOR MOMENTUM FUND, LP
By: /s/ David Firestone
Name: David Firestone
Title: Managing Member, Mercator Advisory
Group LLC
 
    
 
   MERCATOR MOMENTUM FUND III, LP
By: /s/ David Firestone
Name: David Firestone
Title: Managing Member, Mercator Advisory
Group LLC
 
    
 
   MONARCH POINTE, LTD.
By: /s/ David Firestone
Name: David Firestone
Title: Managing Member, Mercator Advisory
Group LLC
 
    
 
   MERCATOR ADVISORY GROUP, LLC
By: /s/ David Firestone
Name: David Firestone
Title: Managing Member
 
    

1

Schedule A

Series G Warrants

         
BCC Acquisition II LLC
     1,000,000  
Mercator Momentum Fund, LP
     83,333  
Mercator Momentum Fund III, LP
     83,333  
Monarch Pointe, Ltd.
     83,334  

2