Exhibit 10.19


 


AMENDMENT NO. 2 TO SECURED CONVERTIBLE
DEBENTURE AND CONSENT


 


THIS AMENDMENT NO. 2 TO SECURED CONVERTIBLE DEBENTURE AND CONSENT (the “Amendment”) is made
as of January 20, 2004, by and between AEROGEN, INC., a Delaware
corporation (the “Borrower”)
and SF
CAPITAL PARTNERS, LTD., or its registered assigns  (the
“Holder”).  Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Debenture and Purchase
Agreement (each as defined below);


 


WHEREAS,
the Borrower issued Secured Convertible Debentures dated September 9, 2003
and amended January 7, 2004 (the “First Debenture”) and November 3, 2003
(together with the First Debenture, the “Debentures”) to the Holder, and warrants
dated September 9, 2003 and November 3, 2003 (the “Warrants”) pursuant to that certain Loan and Securities
Purchase Agreement, dated as of September 9, 2003, as amended by that
certain Amendment dated January 7, 2004, executed by and between the
Borrower and the Holder (as so amended, the “Purchase Agreement”);


 


WHEREAS,
the Borrower is in the process of obtaining bridge financing in an aggregate
principal amount of $500,000 (“Bridge Financing”) on the terms and conditions set forth
in that certain term sheet by and among the Borrower and the Lender named
therein (the “Bridge
Lender”), and attached as Exhibit
A hereto (the “Bridge
Term Sheet”);


 


WHEREAS,
in order to effect the Bridge Financing, the Borrower has requested that the
Holder consent to: (1) the Borrower’s incurrence of the Indebtedness resulting
from the Bridge Financing; (2) the Borrower’s grant of a Security Interest in
the Collateral to secure the Borrower’s obligations to the Bridge Lender (the “Bridge Security Interest”);
and (3) extend the maturity date of the Debenture to March 1, 2004, and
the Holder is willing to so consent, based on the representations, and subject
to the terms and conditions, set forth in this Amendment;


 


NOW,
THEREFORE, for good and valuable consideration, and intending
to be legally bound, each of the Borrower and the Holder agree as follows:


 


1.             Consent.


 


1.1          The Holder hereby
consents to the Borrower’s incurrence of the Indebtedness resulting from the
Bridge Financing in accordance with the terms set forth in the Bridge Term
Sheet.  Borrower acknowledges that if it
issues Common Stock or Common Stock Equivalents in the Bridge Financing with an
Effective Price less than Holder’s relevant Conversion Price or Exercise Price,
it shall result in an adjustment to the Holder’s applicable Conversion Price
and Exercise Price as provided in Section 12(c) of the Debentures and
Section 9(c) of the Warrants.


 


1.2          The Holder hereby
consents to the Borrower’s grant of the Bridge Security Interest in accordance
with the terms set forth in the Bridge Term Sheet.  The Holder hereby acknowledges and confirms that, irrespective of
the order, time, or method of the creation, attachment, or perfection of any
Liens on the Collateral by the Holder or the Bridge Lender, the Liens in the
Collateral to be granted by the Borrower in favor of the Bridge Lender pursuant
to the Bridge Financing documents shall under all circumstances be pari passu with the Liens granted by the
Borrower to the Holder pursuant to the Security Agreements.  Actions with respect to any Collateral shall
be controlled by the holder of a majority in interest of all Indebtedness owed
by the Company to Holder under the Debentures and to Bridge Lender from the
Bridge Financing, and any proceeds from the foreclosure and sale of Collateral
shall be divided between Holder and Bridge Lender on a pro rata basis.


 

















 


Notwithstanding anything
to the contrary in the Purchase Agreement or any other Transaction Document,
the Holder hereby acknowledges and confirms that neither the Borrower’s
incurrence of the Indebtedness resulting from the Bridge Financing nor the
Borrower’s grant of the Bridge Security Interest in favor of the Bridge Lender
shall result in an Event of Default (as defined in the Debentures) under the
Purchase Agreement, the Debentures or any other Transaction Document.


 


2.             Amendment.  The Debentures and Purchase Agreement
are amended as follows:


 


2.1          The Maturity Date of
the First Debenture is amended from January 15, 2004 to March 1,
2004.


 


2.2          The reference to
January 15, 2004 in the definition of Debenture in Section 1.1 of the
Purchase Agreement, as amended, shall now be March 1, 2004.


 


3.             Waiver.  Holder waives any default or breach by
Borrower of the Debentures, Purchase Agreement or related agreements for
failure to repay the Debentures prior to this Amendment.


 


4.             Interest. 
Interest on the Debentures will continue to accrue through March 1,
2004.


 


5.             Termination.  This Amendment will be null and void if
the Bridge Financing has not closed on the terms and conditions set forth in
the Bridge Term Sheet by January 26, 2004.


 


6.             Counterpart.  This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 

















 


IN WITNESS WHEREOF,  the parties hereto have executed this AMENDMENT
as of the date set forth in the first paragraph hereof.


 


	
  BORROWER:

  	
   

  	
  HOLDER:

  
	
   

  	
   

  	
   

  
	
  AEROGEN, INC.

  	
   

  	
  SF CAPITAL PARTNERS, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jane Shaw

  	
   

  	
  By:

  	
  /s/ Brian Davidson

  
	
   

  	
  Jane Shaw

  	
   

  	
   

  	
  Brian Davidson

  
	
   

  	
  Chief Executive Officer

  	
   

  	
   

  	
  Authorized Signatory

  



 

















 


EXHIBIT
A


 


BRIDGE
TERM SHEET


 

















 


SUMMARY OF PROPOSED
TERMS


 


	
  Issuer

  	
   

  	
  Aerogen Inc.
  (“Aerogen” or the “Company”).

  
	
   

  	
   

  	
   

  
	
  Issue

  	
   

  	
  Secured
  Convertible Note (the “Note”).

  
	
   

  	
   

  	
   

  
	
  Amount

  	
   

  	
  $500,000.

  
	
   

  	
   

  	
   

  
	
  Coupon

  	
   

  	
  10% per
  annum, payable upon maturity, in cash, unless converted pursuant to the
  Conversion provision below.

  
	
   

  	
   

  	
   

  
	
  Security

  	
   

  	
  The Note
  will be secured by all tangible and intangible assets of the Company
  currently securing the Company’s debt to SF Capital Partners, Ltd. (the “SF
  Capital debt”).  The Note and related
  security interest will be parri passu to the SF Capital debt, subject to the
  consent of SF Capital.

  
	
   

  	
   

  	
   

  
	
  Maturity

  	
   

  	
  March 1,
  2004.

  
	
   

  	
   

  	
   

  
	
  Investors

  	
   

  	
  Carpenter
  1983 Family Trust (the “Investor”).

  
	
   

  	
   

  	
   

  
	
  Conversion

  	
   

  	
  The
  principal amount of the Note, together with accrued and unpaid interest, will
  be convertible at Investor’s option, at any time prior to repayment, into
  common stock at a fixed price per share (the “Conversion Price”) equal to the
  5-day average closing bid price of the Company’s Common Stock ending on the
  date the parties execute the Purchase Agreement (defined below).

  
	
   

  	
   

  	
   

  
	
  Early Repayment

  	
   

  	
  The Company
  shall have the right to repay the Note in full or in part, prior to maturity,
  provided that the Company: (i) gives the Investor at least 10 business days
  irrevocable notice prior to such prepayment, (ii) pays the Investor 110% of
  the original principal amount of the Note to be prepaid, and (iii) provides
  the same prepayment notice to SF Capital on a pro rata basis.  Any prepayment to be made pursuant to the
  Sale of Assets provision below shall be contingent upon the closing of the
  asset sale transaction.

  
	
   

  	
   

  	
   

  
	
  Registration

  	
   

  	
  The Company
  will agree to file a registration statement covering all shares underlying
  the Note and Warrant (defined below) within 120 days of closing and will use
  its best efforts to have the registration statement declared effective within
  210 days of closing.  If the Company
  fails to file the registration statement within 120 days of closing, a 1% per
  month cash penalty will accrue for the first thirty days thereafter, and then
  2% per month thereafter.  The Company
  will keep the registration statement effective until all underlying shares
  have been sold, or can be sold pursuant to Rule 144k.

  



 

















 


	
  Change of Control

  	
   

  	
  Investor
  will have the right to put the Note to the Company at 110% of par plus any
  accrued and unpaid interest in the event of a change of control or default,
  as defined in the definitive documents.

  
	
   

  	
   

  	
   

  
	
  Warrant

  	
   

  	
  The Company
  will issue a warrant (the “Warrant”) to purchase 50 percent of the number of
  shares of common stock that could be purchased upon conversion of the face
  amount of the Note.  The Warrant will
  have a 4-year life and will be subject to cashless exercise.  The exercise price (“Warrant Exercise
  Price”) will be the same as the Conversion Price.  The Warrant will not be exercisable until six months plus one
  day after the date of issuance.  The
  shares underlying the Warrant will be subject to the same registration
  requirements as the Note.

  
	
   

  	
   

  	
   

  
	
  Covenants

  	
   

  	
  No dividends or share repurchases.

  
	
   

  	
   

  	
   

  
	
  Sale of Assets

  	
   

  	
  Investor will agree to release its security interest in any proposed
  asset sale by the Company for at least fair value as determined in good faith
  by the Company’s Board of Directors. 
  In connection with such sale transaction, the Company shall offer to
  prepay the Note in full pursuant to the Early Repayment provision above after
  the closing of such sale transaction; provided, however, if such sale results
  in proceeds to the Company of less than the amount required to pay the Note
  and the SF Capital debt in full (including accrued interest) pursuant to the
  Early Repayment provision, the Company shall offer to prepay the Note and the
  SF Capital debt in an amount equal to fifty percent of the proceeds from such
  sale transaction.

  
	
   

  	
   

  	
   

  
	
  Expenses

  	
   

  	
  The Company
  and the Investor will bear their own expenses related to the transaction,
  including legal fees.

  
	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
  Usual and
  customary items including reps and warranties, satisfactory completion of due
  diligence, documentation, etc. to be provided in a loan and securities
  purchase agreement (the “Purchase Agreement”) to be drafted by counsel to the
  Company in a format substantially based on the documents used in the SF
  Capital transaction.

  
	
   

  	
   

  	
   

  
	
  Short Sales

  	
   

  	
  The Investor
  hereby agrees that neither the Investor nor any affiliate (as such term is
  defined in Rule 144 under the Securities Act of 1933, as amended) will,
  directly or indirectly, make any short sale or grant any rights with respect to
  the Common Stock of the Company or direct any third party to do the same,
  from the date of signing of this Summary of Proposed Terms to the closing.

  
				



 

















 


	
  Confidentiality

  	
   

  	
  This Summary
  of Proposed Terms, including the existence of it, is material nonpublic
  information of the Company.  The Investor shall maintain in
  strict confidence all of the Company’s material nonpublic information until
  such material nonpublic information has been publicly disseminated by the
  Company.  The Investor shall not use such information in violation of any
  federal securities laws.

  



 


Except for the
above provisions entitled “Short Sales” and “Confidentiality,” which is
expressly agreed by the Investor and the Company to be binding upon execution
of this Summary of Proposed Terms, this Summary of Proposed Terms is not
intended as a legally binding commitment by the Company or the Investor.


 


IN WITNESS
WHEREOF, the undersigned have caused this Summary of Proposed Terms to be
executed as of the date written below.


 


	
  INVESTOR:

  
	
   

  
	
  Carpenter
  1983 Family Trust UA

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Jane E. Shaw, Ph.D., Trustee

  	
   

  
	
   

  
	
   

  
	
  AEROGEN, INC.

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:  Robert S. Breuil

  
	
  Title:  CFO and V.P., Corporate Development

  



 


Dated: 
January       , 2004