Exhibit 10.17
AMENDMENT NO. 1 TO CONVERTIBLE
PROMISSORY NOTE PURCHASE AGREEMENT
This Amendment No. 1, dated as of January 19, 1996, is entered into by and
among Metasyn, Inc., a Delaware corporation (the "Company"), and the purchasers
listed on Exhibit A hereto (the "Purchasers"). Reference is hereby made to the
Convertible Promissory Note Purchase Agreement (the "Agreement") dated as of May
26, 1995 by and among the Company and the Purchasers. Capitalized terms used in
this Amendment that are not defined herein shall have the same meanings in the
Agreement.
WHEREAS, the Purchasers desire to surrender the Company's convertible
promissory notes issued in May 1995 having an aggregate value of $1,500,000.00
(the "May Notes") and promissory notes issued in November and December 1995
having an aggregate value of $1,200,000.00 (the "Bridge Notes") and pay an
additional $300,000.00 in exchange for new promissory notes (the "Notes")
convertible into shares of the Company's Series C Convertible Preferred Stock,
$0.01 par value per share ("Series C Preferred Stock"); and
WHEREAS, the Company is willing to issue the Notes to the Purchasers in
exchange for the surrender of the May Notes and the Bridge Notes and the payment
of an additional aggregate amount of $300,000; and
WHEREAS, the Company and the Purchaser wish to effect such transaction by
amending the Agreement pursuant to this Amendment No. 1.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in the Agreement, as amended hereby, the parties agree as follows:
A. Amendment to Agreement. The Sections of and Exhibits and Schedules to
the Agreement listed below are hereby amended as follows:
1.2 Authorization of Shares. The number "355,256" on the second line
of Section 1.2 is hereby deleted and replaced with "2,071,164."
1.3 Sale of Notes. The words "of up to $1,500,005.00" on the third
line of Section 1.3 is hereby deleted and replaced with "of $3,000,000.00".
2. The Closing. The date "May 26, 1995" on the third line of Section 2 is
hereby deleted and replaced with "January 19, 1996."
3.2 Capitalization. The number "8,000,000" on the third line of Section 3.2
is hereby deleted and replaced with "8,700,000", the number "2,163,736" on the
fourth line thereof is hereby deleted and replaced with "2,345,721", the number
"3,114,782" on the fourth line thereof is hereby deleted and replaced with
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"4,830,690" and the number "355,256" on the seventh line thereof is hereby
deleted and replaced with "2,071,164".
3.11 No Material Adverse Change. The date "March 31, 1994" on the first
line of Section 3.11 is hereby deleted and replaced with "September 30, 1995".
3.16 Investments in Other Persons. The words "Except as set forth in
Schedule 4," are hereby inserted on the first line of Section 3.16 in front of
"The Company" and the "t" in the word "The" on the first line of Section 3.16 is
hereby made lower case.
3.22 Financial Statements. The date "February 28, 1995" on the third line
of Section 3.22 is hereby deleted and replaced with "September 30, 1995", the
words "eleven-month period" on the fourth line thereof if hereby deleted and
replaced with "six-month period" and the date "March 31, 1994" on the fifth line
thereof is hereby deleted and replaced with "March 31, 1995."
3.23 Absence of Liabilities. The date "February 28, 1995" on the second
line of Section 3.23 is hereby deleted and replaced with "September 30, 1995."
4.4 Accredited Investor. The words "Schedule 4" on the first line of
Section 4.4 are hereby deleted and replaced with the words "Schedule 5."
5.8 Payment of Legal Fees. The following new Section 5.8 shall be inserted
after Section 5.7:
5.8 Payment of Legal Fees. The Company shall have delivered to the
Purchasers at Closing a check in an aggregate amount sufficient to reimburse the
Purchasers for the legal fees, expenses and disbursements of counsel to the
Purchasers pursuant to Section 14 hereof.
9.1 Permitted Transfers. The words "or a Subchapter S corporation that is
wholly-owned by such Purchaser" are hereby inserted after the words "(Exhibit
F))" on the fifth line of Section 9.1.
12. Notices. The name "▇▇▇▇▇ ▇▇▇▇▇, Esq." on the third and fourth lines of
the second paragraph of Section 12 is hereby deleted and replaced with the name
"▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.", the name "▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq." on the third line of
the third paragraph of Section 12 is hereby deleted and replaced with the name
"▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq." and the words "Glovsky & Popeo" on the third line
thereof are hereby deleted and replaced with "Glovsky and Popeo, P.C.".
14. Legal Expenses. The words "the reasonable" on the first and second
lines of Section 14 are hereby deleted and replaced with "all reasonable" and
the words", up to an aggregate maximum amount of $20,000" are hereby deleted in
their entirety.
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Exhibits. Exhibits A (List of Purchasers), B (Form of Convertible
Promissory Note), C (Restated Certificate of Incorporation), D (Exceptions
to Representations and Warranties), E (List of Stockholders), F (Amended
and Restated Stockholders' Rights Agreement), G (Financial Information) and
J (Form of Opinion of ▇▇▇▇▇▇ & Dodge) are hereby deleted in their entirety
and replaced with Exhibits ▇, ▇, ▇, ▇, ▇, ▇, ▇ and J hereto, respectively.
Schedules. Schedule 4 (Non-accredited Investors) is hereby replaced
with Schedule 4 (Investments in other Persons) hereto and old Schedule 4,
hereby renumbered Schedule 5.
B. Representations and Warranties of the Company. The Company hereby represents
and warrants to each of the Purchasers that each of the representations and
warranties set forth in Section 3 of the Agreement, as amended hereby, are true
on and as of the date hereof with the same effect as though such representations
and warranties had been made on and as of the date hereof.
C. Representations and Warranties to the Purchasers. Each of the Purchasers
hereby severally represents and warrants to the Company that each of the
representations and warranties set forth in Section 4 of the Agreement, as
amended hereby, are true on and as of the date hereof with the same force and
effect as though such representations and warranties had been made on and as of
the date hereof.
D. No Other Amendments. There have been no other changes, modifications or
alterations to the Agreement except as amended hereby.
E. Entire Agreement. The Agreement, as amended hereby, embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
F. Counterparts. This Amendment may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
G. Headings. The headings of the sections, subsections, and paragraphs of this
Amendment have been added for convenience only and shall not be deemed to be a
part of this Agreement.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
METASYN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
ACCEL IV L.P.
By: Accel IV Associates L.P.,
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name:
Title: General Partner
ACCEL INVESTORS '93 L.P.
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
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Name:
Title: General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.,
its General Partner
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
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Name:
Title: General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
Title: General Partner
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
PROSPER PARTNERS
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
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Name:
Title: Attorney-in-Fact
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
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C. ▇▇▇▇▇▇▇▇ ▇▇▇▇
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
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Belisarius Corporation
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G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Gabrieli Family Foundation
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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* By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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