Amendment No. 1 to Registration Rights Agreement by and among ATS Medical, Inc. and Buyers

Contract Categories: Business Finance › Registration Rights Agreements
Summary

ATS Medical, Inc. and several investment entities have amended their Registration Rights Agreement originally dated October 7, 2005. This amendment increases the amount of securities covered, now including up to $28 million in 6% Convertible Senior Notes due 2025 and warrants to purchase up to 1,680,000 shares of common stock. All other terms of the original agreement remain unchanged. The amendment is effective as of October 13, 2005, and is governed by New York law.

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EX-10.2 6 c99127exv10w2.txt AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT EXECUTION COPY Exhibit 10.2 ================================================================================ AMENDMENT NO. 1 Dated as of October 13, 2005 TO THE REGISTRATION RIGHTS AGREEMENT Dated as of October 7, 2005 by and among ATS MEDICAL, INC. as the Company and BUYERS, as defined therein ================================================================================ AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT AMENDMENT NO. 1 dated as of October 13, 2005 (this "Amendment"), by and among ATS Medical, Inc., a Minnesota corporation (the "Company"), and the buyers listed on the Amended Schedule of Buyers attached hereto as Exhibit A (each, a "Buyer" and, collectively, the "Buyers") to the Registration Rights Agreement (the "Original Agreement"), dated as of October 7, 2005, by and among the Company and the buyers listed on the Schedule of Buyers attached to the Original Agreement (the "Initial Buyers"). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement, dated as of October 6, 2005, by and among the Company and the Initial Buyers. WITNESSETH: WHEREAS, the Company has heretofore entered into the Original Agreement with the Initial Buyers providing for the registration of Registrable Securities (as defined in the Original Agreement), which included an aggregate of up to $23,750,000 of the Company's 6% Convertible Senior Notes due 2025 and Warrants to purchase up to 1,425,000 shares of the Company's Common Stock. WHEREAS, the Company desires to enter into this Amendment to increase the Registrable Securities to include an aggregate of up to $4,250,000 of the Company's 6% Convertible Senior Notes due 2025 and warrants to purchase up to 255,000 shares of Common Stock. WHEREAS, in accordance with Section 10 of the Original Agreement, the Pricing Committee of the Board of Directors of the Company has authorized the execution of this Amendment. WHEREAS, in accordance with Section 10 of the Original Agreement, holders of not less than a majority of the Conversion Shares (as defined in the Original Agreement) and the Warrant Shares (as defined in the Original Agreement) hereby approve the amendment and restatement of Paragraph A of the Original Agreement (as set forth below), and approve the adoption of this Amendment. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows: SECTION 1. Paragraph "A" on the first page of the Original Agreement is hereby deleted and replaced with the following: "A. The Company and the Buyers entered into that certain Securities Purchase Agreement dated as of October 6, 2005, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof (the "Securities Purchase Agreement"), and, upon the terms and subject to the conditions of the Securities Purchase Agreement, the Company has agreed to issue and sell to the Buyers an aggregate of up to Twenty-Eight Million United States Dollars ($28,000,000) of the Company's 6% Convertible Senior Notes due 2025 (such Convertible Senior Notes, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof, the "Notes"), which shall be convertible into shares of common stock, $0.01 par value per share (the "Common Stock") of the Company (as converted, the "Conversion Shares"), and Warrants (such Warrants, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof, the "Warrants") to purchase up to One Million Six Hundred and Eighty Thousand (1,680,000) shares of Common Stock (as exercised, the "Warrant Shares")." SECTION 2. Except as expressly amended hereby, the Original Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. SECTION 3. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. SECTION 4. This Amendment shall be governed by and construed in accordance with the laws of the State of New York. 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the Registration Rights Agreement to be duly executed as of the day and year first above written. "COMPANY" ATS MEDICAL, INC. By: /s/ John R. Judd ------------------------------------ Its: Chief Financial Officer [Signatures of Buyers on Following Pages] 3 [DEERFIELD SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT] IN WITNESS WHEREOF, each of the undersigned has caused this Amendment No. 1 to the Registration Rights Agreement to be duly executed as of the day and year first written above. "BUYER" DEERFIELD PARTNERS, L.P. By: /s/ Arnold H. Snider ------------------------------------ (signature of authorized representative) Name: Arnold H. Snider Its: General Partner "BUYER" DEERFIELD INTERNATIONAL LIMITED By: /s/ Arnold H. Snider ------------------------------------ (signature of authorized representative) Name: Arnold H. Snider Its: Investment Manager 4 IN WITNESS WHEREOF, each of the undersigned has caused this Amendment No. 1 to the Registration Rights Agreement to be duly executed as of the day and year first written above. SF CAPITAL PARTNERS LTD. By: /s/ Brian Davidson --------------------------------- Name: Brian Davidson Its: Authorized Signatory WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, LP By: /s/ Andrew Redleaf --------------------------------- Whitebox Convertible Arbitrage Partners, LP Whitebox Convertible Arbitrage Advisors LLC Whitebox Advisors LLC Andrew Redleaf, Managing Member of the General Partner WHITEBOX INTERMARKET PARTNERS, LP By: /s/ Andrew Redleaf --------------------------------- Whitebox Intermarket Partners LP Whitebox Intermarket Advisors LLC Whitebox Advisors LLC Andrew Redleaf, Managing Member of the General Partner HFR RVA COMBINED MASTER TRUST By: /s/ Dora Hines --------------------------------- Dora Hines, for and on behalf of HFR Asset Management, LLC as attorney in fact DBZ ACQUISITION PARTNERS II, LLC By: /s/ David Proshan --------------------------------- Name: David Proshan Its: General Counsel [SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT] 5 THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By: /s/ Jerome R. Baier --------------------------------- Name: Jerome R. Baier Its: Authorized Representative RADCLIFFE SPC, LTD. FOR AND ON BEHALF OF THE CLASS A CONVERTIBLE CROSSOVER SEGREGATED PORTFOLIO By: RG Capital Management, L.P. By: RGC Management Company, L.L.C. By: /s/ Gerald F. Stahlecker --------------------------------- Gerald F. Stahlecker, Managing Director CAPITAL VENTURES INTERNATIONAL By: HEIGHTS CAPITAL MANAGEMENT, INC., its authorized agent By: /s/ Martin Kobinger --------------------------------- Name: Martin Kobinger Its: Investment Manager SMITHFIELD FIDUCIARY LLC By: /s/ Scott M. Wallace --------------------------------- Name: Scott M. Wallace Its: Authorized Signatory [SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT] 6 EXHIBIT A AMENDED SCHEDULE OF BUYERS
PRINCIPAL AMOUNT OF NOTES NUMBER OF WARRANTS NAME OF BUYER ------------------------- -------------------- CONTACT INFORMATION FOR BUYER INITIAL ADDITIONAL INITIAL ADDITIONAL ----------------------------- ----------- ----------- ------- ---------- 1. SF Capital Partners, Ltd. $4,000,000 $1,000,000 240,000 60,000 3600 South Lake Drive St. Francis, WI 53235 2. Whitebox Entities: - Whitebox Convertible Arbitrage $3,300,000 $ 825,000 198,000 49,500 Partners, LP - Whitebox Intermarket Partners, LP $ 500,000 $ 125,000 30,000 7,500 - HFR RVA Combined Master Trust $ 200,000 $50,000 12,000 3,000 3033 Excelsior Boulevard, Suite 300 Minneapolis, MN 55416 3. DBZ Acquisition Partners II, LLC $3,000,000 $ 750,000 180,000 45,000 745 Fifth Avenue, 18th Floor New York, NY 10151 4. The Northwestern Mutual Life $3,000,000 $ 750,000 180,000 45,000 Insurance Company 720 East Wisconsin Avenue Milwaukee, WI 53202 5. Radcliffe SPC, Ltd. for and on behalf $2,500,000 $ 625,000 150,000 37,500 of the Class A Convertible Crossover Segregated Portfolio 3 Bala Plaza East, Suite 501 Bala Cynwyd, PA 19004 6. Capital Ventures International $1,500,000 $ 375,000 90,000 22,500 101 California Street, Suite 3250 San Francisco, CA 94111 7. Smithfield Fiduciary LLC $1,000,000 $ 250,000 60,000 15,000 9 West 57th Street New York, NY 10019 8. Deerfield Entities: - Deerfield Partners, L.Pl $1,632,000 $ 408,000 97,920 24,480 - Deefield International Limited $1,768,000 $ 442,000 106,080 26,520 780 Third Avenue, 37th Floor New York, NY 10047