EXHIBIT 10.3
Amendment No. 2 to
Tenth Amended and Restated
Investors' Rights Agreement (the "Investors' Rights Agreement")
(a) Schedule A is hereby amended so as to add Ferghana Partners Inc.
as a party to the Investors' Rights Agreement as an "Investor" as such term is
used therein.
(b) Section 2.1 is hereby amended so as to add a new defined term
"Ferghana Registrable Securities" which shall read in its entirety as follows:
"(p) The term "Ferghana Registrable Securities" means (i)
those shares of Common Stock issued or issuable upon conversion of the
shares of Common Stock issued or issuable upon exercise of that certain
Warrant Agreement by and between Acusphere and Ferghana Partners Inc. and
issued in connection with Acusphere's consummation of strategic
transaction with Nycomed Danmark APS on July 6, 2004 pursuant to that
certain Letter Agreement by and between Acusphere and Ferghana Partners
Inc. dated June 5, 2003 (the "Ferghana Warrant") and (ii) any common stock
of Acusphere issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the
shares referenced in (i) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which the
rights under this Section 2 are not assigned.
(c) Section 2.1(k) is hereby amended so as to amend the definition
of "Registrable Securities" so that such definition, as amended, shall read in
its entirety as follows:
"(k) The term "Registrable Securities" means (A) (i) the
Common Stock issuable or issued upon conversion of the Series A-1 Stock,
the Series A-2 Stock, the Series B-1 Stock, the Series B-2 Stock, the
Series C-1 Stock, the Series C-2 Stock, the Series D-1 Stock, the Series
D-2 Stock, the Series E-1 Stock, the Series E-2 Stock, the Series F-1
Stock, the Series F-2 Stock, the Series I-1 Stock, the Series I-2 Stock,
the Series J Stock, the Series J-1 Stock, the Series J-2 Stock and the
Series J-3 Stock, (ii) any Common Stock of Acusphere issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of the shares referenced in (i)
above, (iii) the Bridge Note Registrable Securities, (iv) the Bridge
Warrant Registrable Securities, and (v) the Venture Lender Registrable
Securities, excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which the rights under this Section 2
are not assigned; (B) solely for the purposes of Sections 2.1, 2.3 through
2.15, 3.11, 4.1, 4.7 and 4.9 of this Agreement, the Alexandria Registrable
Securities and the Venture Lender Registrable Securities; and (C) solely
for purposes of Sections 2.1, 2.3, 2.5, 2.6 and 2.8 through 2.15, the
Ferghana Registrable Securities."
(e) Except as hereby amended, the Investors' Rights Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to
Tenth Amended and Restated Investors' Rights Agreement as of the day first above
written.
ACUSPHERE, INC.
500 Arsenal Street
Watertown, MA 02472
By: /s/ Sherri C. Oberg
-------------------------------------
Sherri C. Oberg
President and Chief Executive Officer
/s/ Robert Langer
- -----------------------------
Robert Langer
POLARIS VENTURE PARTNERS, L.P.
By: Polaris Venture Management Co., LLC,
Its General Partner
By: /s/ Terence McGuire
------------------------------------
Member
POLARIS VENTURE FOUNDERS' FUND, L.P.
By: Polaris Venture Management Co., LLC,
Its General Partner
By: /s/ Terence McGuire
------------------------------------
Member
BANK OF AMERICA VENTURES
By: /s/ Kate D. Mitchell
------------------------------------
Title: President and Managing Director
---------------------------------
BA VENTURE PARTNERS II LLC
By: /s/ Kate D. Mitchell
------------------------------------
Title: Managing Director
---------------------------------
THOMAS WEISEL CAPITAL PARTNERS, L.P.
By: Tailwind Capital Partners LLC,
its general partner
By: /s/ Douglas M. Karp
-----------------------------------
Name: Douglas M. Karp
Title: Managing Partner
TWP CEO FOUNDERS' CIRCLE (AI), L.P.
By: Tailwind Capital Partners LLC,
its general partner
By: /s/ Douglas M. Karp
-----------------------------------
Name: Douglas M. Karp
Title: Managing Partner
TWP CEO FOUNDERS' CIRCLE (QP), L.P.
By: Tailwind Capital Partners LLC,
its general partner
By: /s/ Douglas M. Karp
____________________________________
Name: Douglas M. Karp
Title: Managing Partner
THOMAS WEISEL CAPITAL PARTNERS (DUTCH), L.P.
By: Thomas Weisel Capital Partners (Dutch) LLC,
its general partner
By: Tailwind Capital Partners LLC,
its managing member
By: /s/ Douglas M. Karp
__________________________________________
Name: Douglas M. Karp
Title: Managing Partner
THOMAS WEISEL CAPITAL PARTNERS
(DUTCH II), L.P.
By: Thomas Weisel Capital Partners (Dutch), LLC,
its general partner
By: Tailwind Capital Partners LLC,
its managing member
/s/ Douglas M. Karp
By:__________________________________________
Name: Douglas M. Karp
Title: Managing Partner
THOMAS WEISEL CAPITAL PARTNERS EMPLOYEE FUND, L.P.
By: Tailwind Capital Partners LLC,
its general partner
By: /s/ Douglas M. Karp
____________________________________
Name: Douglas M. Karp
Title: Managing Partner
TWP 2000 CO-INVESTMENT FUND, L.P.
By: Thomas Weisel Capital Management LLC,
its general partner
By: Thomas Weisel Partners Group LLC,
its managing member
By: /s/ Jack Helfard
____________________________________
Name: Jack Helfard
Title: Vice President