EXECUTION COPY
Exhibit 10.2
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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
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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.
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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/ Xxxx X. Xxxx
------------------------------------
Its: Chief Financial Officer
[Signatures of Buyers on Following Pages]
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[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/ Xxxxxx X. Xxxxxx
------------------------------------
(signature of authorized representative)
Name: Xxxxxx X. Xxxxxx
Its: General Partner
"BUYER"
DEERFIELD INTERNATIONAL LIMITED
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
(signature of authorized representative)
Name: Xxxxxx X. Xxxxxx
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/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Its: Authorized Signatory
WHITEBOX CONVERTIBLE ARBITRAGE
PARTNERS, LP
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Whitebox Convertible Arbitrage
Partners, LP
Whitebox Convertible Arbitrage
Advisors LLC
Whitebox Advisors LLC
Xxxxxx Xxxxxxx, Managing Member
of the General Partner
WHITEBOX INTERMARKET PARTNERS, LP
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Whitebox Intermarket Partners LP
Whitebox Intermarket Advisors LLC
Whitebox Advisors LLC
Xxxxxx Xxxxxxx, Managing Member
of the General Partner
HFR RVA COMBINED MASTER TRUST
By: /s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, for and on behalf of
HFR Asset Management, LLC
as attorney in fact
DBZ ACQUISITION PARTNERS II, LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Its: General Counsel
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT]
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THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
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/ Xxxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxxx,
Managing Director
CAPITAL VENTURES INTERNATIONAL
By: HEIGHTS CAPITAL MANAGEMENT, INC., its authorized agent
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Investment Manager
SMITHFIELD FIDUCIARY LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT]
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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
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
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
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
3. DBZ Acquisition Partners II, LLC $3,000,000 $ 750,000 180,000 45,000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
4. The Northwestern Mutual Life $3,000,000 $ 750,000 180,000 45,000
Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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
0 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
6. Capital Ventures International $1,500,000 $ 375,000 90,000 22,500
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
7. Smithfield Fiduciary LLC $1,000,000 $ 250,000 60,000 15,000
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
8. Deerfield Entities:
- Deerfield Partners, X.Xx $1,632,000 $ 408,000 97,920 24,480
- Deefield International Limited $1,768,000 $ 442,000 106,080 26,520
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
