Alsius Corp Amendment No.2 to 10th Amended & Restated Investor Rights Agreement



 Exhibit 10.12 
 AMENDMENT NO. 2 TO 
 TENTH AMENDED AND RESTATED 
 INVESTOR RIGHTS AGREEMENT 
 THIS
AMENDMENT NO. 2 TO TENTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Amendment”), entered into on August 18, 2006, among ALSIUS CORPORATION, a California corporation (the “Company”), and the undersigned investors
in the Company (the “Investors”). 
 RECITALS: 
 A. Certain of the Investors hold shares of the Company’s Common Stock, Series A, Series B, Series C-D, Series E and/or Series F Preferred Stock and possess registration rights, information
rights, rights of first refusal, and other rights pursuant to that certain Tenth Amended and Restated Investor Rights Agreement, dated as of September 2, 2004, among the Company, such Investors and certain other shareholders of the Company (the
“Original Agreement”). 
 B. The Tenth Restated Agreement was amended on April 13, 2006 (the “First Amendment” and
together with the Original Agreement, the “Tenth Restated Agreement”) 
 C. On or about the date hereof, in connection with a
bridge financing (the “Bridge Financing”), the Company is issuing a series of 8% Unsecured Convertible Promissory Notes (the “Bridge Notes”) and warrants to purchase Common Stock of the Company (the “Warrants”).

 D. It is a condition to the closing of the Bridge Financing that this Amendment be executed by the parties hereto, and the parties are
willing to execute, and to be bound by the provisions of, this Amendment. 
 E. The undersigned Investors desire to amend the definition of
“Registrable Securities” under Section 1.1 of the Tenth Restated Agreement to include the shares of stock issuable upon conversion of the Bridge Notes and exercise of the Warrants. 
 F. The undersigned Investors desire to amend Sections 3.6 and 3.7 of the Tenth Restated Agreement to increase the voting threshold for approvals under
those sections to sixty percent (60%). 
 G. The Investors executing this Amendment hold a majority of the shares held by all Investors who
are a party to the Tenth Restated Agreement and a majority of the shares of Series C-D, Series E and Series F Preferred Stock or Common Stock issuable upon conversion thereof, and therefore, have the power under Section 3.6 of the
Tenth Restated Agreement to amend such agreement. 
  

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 NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties to
the Tenth Restated Agreement hereby agree that the Tenth Restated Agreement shall be amended as follows: 
 1. Revised Definition of 2006
Bridge Notes in Section 1.1. The undersigned Investors hereby agree that the definition of 2006 Bridge Notes added in the First Amendment to Section 1.1 of the Original Agreement shall be deleted in its entirety and replaced with the
following: 
 “2006 Bridge Notes” means the convertible promissory notes made by the Company, dated
April 13, 2006 and August 18, 2006, in connection with bridge financings of the Company of approximately $6,200,000.” 
 2.
Revised Definition of “Warrants.” The undersigned Investors hereby agree that the definition of “Warrants” in Section 1.1 of the Tenth Restated Agreement shall be deleted in its entirety and replaced with the
following: 
 ““Warrants” means those certain warrants to purchase Common Stock of the Company
(i) dated April 30, 2003, issued to the initial purchasers of the Bridge Notes and (ii) dated April 13, 2006 and August 18, 2006, issued to the initial purchasers of the 2006 Bridge Notes.” 
 3. Amendment to Sections 3.6 and 3.7. The undersigned Investors hereby agree that Sections 3.6 and 3.7 shall be deleted in their entirety and
replaced with the following: 
 “3.6 Amendment and Waivers. Except as may be otherwise provided in Section 3.7, any provision
of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company, the Investors holding a majority of the
shares held by all Investors, and the Investors holding at least sixty percent (60%) of the shares of Common Stock issued or issuable upon conversion of Series C-D, Series E and Series F Preferred Stock; provided, however, that
any waiver or amendment that adversely affects an Investor in a manner that is materially different than the other Investors (other than differences resulting solely from ownership of a different amount of shares) shall require the written consent
of such Investor in order to be binding on such Investor; and, provided further, that the Company may amend Exhibit A to this Agreement at any time and from time to time without the consent of any Investor solely to (i) add CHANNEL and any
Rights Investor (as defined in the Purchase Agreement), in each case provided that CHANNEL and such Rights Investor executes a Counterpart to this Agreement in the form of Exhibit B hereto as a party to this Agreement, or (ii) reflect the
conversion to Common Stock of the Preferred Stock of any Investor whose Preferred Stock is so converted (voluntarily or automatically) pursuant to the conversion provisions of such Preferred Stock, or to reflect any adjustment to the outstanding
shares of Preferred Stock or Common Stock due to a stock split, stock dividend or recapitalization. Any amendment or waiver effected in accordance with this Section shall be binding upon all present and future Investors.” 
 “3.7 Additional Registration Rights. The Company will not grant any registration rights not set forth herein without the prior approval of the
Holders of at least a majority of the then outstanding Registrable Securities and the Investors 

  

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holding sixty percent (60%) of the shares of Common Stock issued or issuable upon conversion of Series C-D, Series E and Series F
Preferred Stock; provided, however, in the event the Shareholders of the Company have legally and validly approved the sale of securities and the granting of registration rights to the holders thereof, such securities may be added to the definition
of Registrable Securities hereunder and such holders shall constitute Holders hereunder to the extent they agree in writing to be bound by the terms and conditions hereof.” 
 4. Remainder of Tenth Restated Agreement Unchanged. Except as amended by this Amendment, the Tenth Restated Agreement shall otherwise remain in
full force and effect. 
 5. Governing Law. This Amendment shall be governed by and construed under the laws of the State of
California, without regard to its conflicts of laws provisions. 
 6. Counterparts. 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. 
 7.
Facsimile Signatures. This Amendment may be executed and delivered by facsimile and upon such delivery, the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other parties. The
original signature copy shall be delivered to the other parties by mail. The failure to deliver the original signature copy and/or the non-receipt of the original signature copy shall have no effect upon the binding and enforceable nature of this
Amendment. 
 IN WITNESS WHEREOF, the undersigned Investors and the Company have executed this Amendment as of the day and year first above
written. 
  

			
	 ALSIUS CORPORATION,
 a California corporation

		
	 By    
	 	/s/ William J. Worthen
		 	William J. Worthen
		 	President and Chief Executive Officer



			
		
	 Address:
	 	 15770 Laguna Canyon Road

		 	 Suite 150

		 	 Irvine, CA 92618-3111



  

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	 MAYFIELD VIII

		
	 By:
	 	/s/ Grant Heidrich
		
	 Name:
	 	Grant Heidrich
		
	 Title:
	 	Managing Director



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025

	
	 MAYFIELD ASSOCIATES FUND III

		
	 By:
	 	/s/ Grant Heidrich
		
	 Name:
	 	Grant Heidrich
		
	 Title:
	 	Managing Director



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025



  

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	 FEVER TRUST

		
	 By:
	 	/s/ James T. Beck
		
	 Name:
	 	James T. Beck
		
	 Title:
	 	 Administrative Trustee




			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025

	
	 FEVER TRUST II

		
	 By:
	 	/s/ James T. Beck
		
	 Name:
	 	James T. Beck
		
	 Title:
	 	Administrative Trustee



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025

	
	 FEVER TRUST III

		
	 By:
	 	/s/ James T. Beck
		
	 Name:
	 	James T. Beck
		
	 Title:
	 	Administrative Trustee



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025



  

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	 HUTTON LIVING TRUST

		
	 By:
	 	/s/ Wende S. Hutton
		
	 Name:
	 	Wende S. Hutton
		
	 Title:
	 	Trustee



			
		
	 Address:
	 	 2 Santiago Avenue
 Atherton, CA 94027



  

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	 NEW ENTERPRISE ASSOCIATES VII, L.P.

		
	 By:
	 	 NEA Partners VII, Limited Partnership
 Its General Partner

		
	 By:
	 	/s/ Charles W. Newhall III
		
	 Name:
	 	Charles W. Newhall III
		
	 Title:
	 	General Partner



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025




			
	
	 NEA PRESIDENTS FUND, L.P.

		
	 By:
	 	 NEA General Partners, L.P.
 Its General Partner

		
	 By:
	 	/s/ Charles W. Newhall III
		
	 Name:
	 	Charles W. Newhall III
		
	 Title:
	 	General Partner



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025




			
	
	 NEA VENTURES 1997, LIMITED
 PARTNERSHIP

		
	 By:
	 	/s/ Louis B. Van Dyck
		
	 Name:
	 	Louis B. Van Dyck
		
	 Title:
	 	General Partner



			
		
	 Address:
	 	 2800 Sand Hill Road
 Menlo Park, CA 94025



  

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	 SIGHTLINE HEALTHCARE FUND II, L.P.

		
	 By:
	 	 /s/ Buzz Benson
  

		
	 Name:
	 	 Buzz Benson
  

		
	 Title:
	 	 Managing Director
  




			
		
	 Address:
	 	 50 South Sixth Street, Suite 1390
 Minneapolis, MN 55402



  

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	 VERTICAL FUND I, L.P.

		
	 By
	 	 Vertical Group, L.P., General Partner

		
	 By:
	 	 /s/ John E. Runnells

		
	 Name:
	 	 John E. Runnells

		
	 Title:
	 	 General Partner




			
		
	 Address:
	 	 25 DeForest Avenue
 Summit, NJ 07901




			
	
	 VERTICAL FUND II, L.P.

		
	 By
	 	 Vertical Group, L.P., General Partner

		
	 By:
	 	 /s/ John E. Runnells

		
	 Name:
	 	 John E. Runnells

		
	 Title:
	 	 General Partner




			
		
	 Address:
	 	 25 DeForest Avenue
 Summit, NJ 07901



  

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	MPM BIOVENTURES II, L.P.
		
	By:	 	 MPM Asset Management II, L.P.,
 its General
Partner

		
	By:	 	 MPM Asset Management II LLC,
 its General
Partner

		
	By:	 	/s/ Kurt C. Wheeler
		
	Name:	 	Kurt C. Wheeler
		
	Title:	 	Investment Manager



			
		
	Address:	 	200 Clarendon Street, 54th Floor Boston, MA 02116



			
	
	MPM BIOVENTURES II-QP, L.P.
		
	By:	 	 MPM Asset Management II, L.P.,
 its General
Partner

		
	By:	 	 MPM Asset Management II LLC,
 its General
Partner

		
	By:	 	/s/ Kurt C. Wheeler
		
	Name:	 	Kurt C. Wheeler
		
	Title:	 	Investment Manager



			
		
	Address:	 	200 Clarendon Street, 54th Floor Boston, MA 02116


  

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	 MPM BIOVENTURES GMBH & CO.
 PARALLEL-BETEILIGUNGS KG

		
	By:	 	MPM Asset Management II, L.P., in its capacity as the Special Limited Partner
		
	By:	 	MPM Asset Management II LLC, its General Partner
		
	By:	 	/s/ Kurt C. Wheeler
		
	Name:	 	Kurt C. Wheeler
		
	Title:	 	Investment Manager



			
		
	Address:	 	200 Clarendon Street, 54th Floor Boston, MA 02116



			
	
	MPM ASSET MANAGEMENT INVESTORS 2000 B LLC
		
	By:	 	/s/ Kurt C. Wheeler
		
	Name:	 	Kurt C. Wheeler
		
	Title:	 	Investment Manager



			
		
	Address:	 	200 Clarendon Street, 54th Floor Boston, MA 02116


  

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	CHANNEL MEDICAL PARTNERS, L.P.
		
	By:	 	/s/ Carol Dorothy Winslow
		
	Name:	 	Carol Dorothy Winslow
		
	Title:	 	Principal



			
		
	Address:	 	5750 Old Orchard Road, Suite 310 Skokie, IL 60077



			
	
	HUNT VENTURES, L.P.
		
	By:	 	  
		
	Name:	 	  
		
	Title:	 	  



			
		
	Address:	 	 Fountain Place
 1445 Ross at Field
 Dallas, TX 75202-2785



  

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	CANAAN EQUITY II L.P.
		
	By:	 	Canaan Equity Partners II LLC
		
	By:	 	/s/ Guy M. Russo
		 	Member/Manager



			
		
	Address:	 	 105 Rowayton Avenue
 Rowayton, CT
06853




			
	
	CANAAN EQUITY II L.P. (QP)
		
	By:	 	Canaan Equity Partners II LLC
		
	By:	 	/s/ Guy M. Russo
		 	Member/Manager



			
		
	Address:	 	 105 Rowayton Avenue
 Rowayton, CT
06853




			
	
	CANAAN EQUITY II ENTREPRENEURS LLC
		
	By:	 	Canaan Equity Partners II LLC
		
	By:	 	/s/ Guy M. Russo
		 	Manager



			
		
	Address:	 	 105 Rowayton Avenue
 Rowayton, CT
06853



  

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	CYCAD GROUP, LLC
		
	By:	 	/s/ K. Leonard Judson
		
	Name:	 	 K. Leonard Judson
  

		
	Title:	 	 President and Manager
  




			
		
	Address:	 	 6187 Carpinteria Ave., Suite 300
 P.O. BOX
5010
 Carpinteria, CA 93014



  

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	GUIDANT CORPORATION
		
	By:	 	  
		
	Name:	 	  
		
	Title:	 	  



			
		
	Address:	 	  
		
		 	  


  

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	UNICORN MEDICAL INCORPORATED
		
	By:	 	  
		
	Name:	 	  
		
	Title:	 	  



			
		
	Address:	 	 c/o Pierre Gobin, M.D.,
 Department of
Radiology
 Cornell University
 525 E. 68th Street
 Box 141
 New York, NY 10021



  

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	MEDTRONIC, INC.
		
	By:	 	  
		
	Name:	 	  
		
	Title:	 	  



			
		
	Address:	 	  
		
		 	  


  

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	ev3 INC.
		
	By:	 	  
		
	Name:	 	  
		
	Title:	 	  



			
		
	Address:	 	 c/o Jim Corbett
 1861 Buerkle Road
 White Bear, MN 55110



  

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