Exhibit 10.34
AMENDMENT NO. 1 TO
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY SECURITY AGREEMENT ("Amendment")
is made and entered into as of March 11, 2004 by Aerogen, Inc., a Delaware
corporation (the "Borrower"), and the lenders signatory hereto (each lender
including their respective successors, endorsees, transferees and assigns, a
"Secured Party", and collectively, the "Secured Parties").
RECITALS
A.
BORROWER AND SECURED PARTIES HAVE ENTERED
INTO THAT CERTAIN INTELLECTUAL PROPERTY SECURITY AGREEMENT DATED AS OF
SEPTEMBER 8, 2003 (THE "ORIGINAL INTELLECTUAL PROPERTY SECURITY AGREEMENT")
PURSUANT TO WHICH, AMONG OTHER THINGS, BORROWER GRANTED A SECURITY INTEREST TO
SECURED PARTIES IN CERTAIN PERSONAL PROPERTY OF BORROWER, AS MORE FULLY SET
FORTH THEREIN.
B.
BORROWER HAS REQUESTED THAT SECURED
PARTIES MAKE A LOAN TO BORROWER IN THE AGGREGATE PRINCIPAL AMOUNT OF $300,000
(THE "LOAN"), WHICH LOAN WILL BE EVIDENCED BY A SECURED DEBENTURE DUE APRIL 11,
2004 (THE "APRIL 2004 DEBENTURE").
C.
SECURED PARTIES ARE WILLING TO MAKE THE
LOAN AND TO ACCEPT THE APRIL 2004 DEBENTURE BUT ONLY UPON THE CONDITION THAT
BORROWER SHALL HAVE EXECUTED AND DELIVERED THIS AMENDMENT TO SECURED PARTIES.
ALL CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN
TO SUCH TERMS IN THE ORIGINAL INTELLECTUAL PROPERTY SECURITY AGREEMENT.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants herein set forth, and intending to be legally bound, the parties
hereto hereby amend the Original Intellectual Property Security Agreement as
follows:
1.
AMENDMENTS TO ORIGINAL INTELLECTUAL
PROPERTY SECURITY AGREEMENT.
The following amendments are hereby made to the
Original Intellectual Property Security Agreement:
(a)
For all purposes of the Original
Intellectual Property Security Agreement, the term "Company" shall be deemed to
mean the "Borrower."
(b)
For all purposes of the Original
Intellectual Property Security Agreement, the term "Debentures" shall be deemed
to include the April 2004 Debenture.
(c)
Section 13 of the Original Intellectual
Property Security Agreement is amended by adding the phrase "or Section 7 of the
April 2004 Debenture" immediately after the phrase "Section 11 of the
Debenture".
Secured Parties shall first apply the Purchase Price toward the
prepayment of the April 2004 Debenture, and then, to the extent any proceeds
remain, toward the prepayment of the other Debentures, all in accordance with
Section 13 of the Original Intellectual Property Security Agreement.
1
2.
FULL FORCE AND EFFECT.
Except to the
extent expressly provided in this Amendment, the terms and conditions of the
Original Intellectual Property Security Agreement shall remain in full force and
effect.
3.
COUNTERPARTS; EFFECTIVENESS.
This
Amendment may be executed in counterparts, each of which when so executed shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
This Amendment shall be deemed effective upon the
execution of a counterpart hereof by Borrower and Secured Parties.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed and delivered by its duly authorized officer on the date first set
forth above.
BORROWER