SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, AS AMENDED
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Exhibit 10.9
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, AS AMENDED (this "Amendment") is made and entered into as of June 30, 2003, by and among Immunicon Corporation, a Delaware corporation (the "Company"), certain entities and persons listed on Schedule A to that certain Second Amended and Restated Investor Rights Agreement, dated as of December 13, 2001, by and among the Company and the signatories thereto, as amended on March 6, 2002 (the "Agreement"), and those other signatories hereto who will be purchasing shares of Series F Convertible Preferred Stock of the Company pursuant to the Series F Preferred Stock Purchase Agreement of even date herewith (each a "New Investor" and, collectively, the "New Investors"). Capitalized terms used herein but not defined shall have the meanings given to such terms in the Agreement.
WHEREAS, the parties wish to amend the Agreement to effectuate the changes set forth herein and to permit each New Investor to enter into the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. Section 3.1(g) of the Agreement is hereby amended to read in its entirety as follows:
"(g) The rights of the Investors under this Section 3 shall not apply to:
(1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of Common Stock;
(2) Common Stock issued upon conversion of outstanding Stock;
(3) Common Stock or options therefor (including options for Common Stock currently outstanding) issued or issuable to officers, directors, consultants and employees of the Company or any subsidiary pursuant to the Company's stock purchase or option plans in place on the date hereof and in an aggregate amount not to exceed 3,900,000 shares of Common Stock;
(4) Common Stock offered by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company to the public;
(5) capital stock issued in connection with an acquisition approved by all of the directors elected by holders of the Stock of the assets or stock of another company so long as no beneficial holder of the acquired entity is, at the time of acquisition, a stockholder, officer or director of the Company or any of its subsidiaries or an affiliate of any such person;
(6) Common Stock, in a number of shares not to exceed an aggregate of 685,000 shares, issued or issuable in connection with transactions that are primarily for purposes other than raising equity financing approved by all of the non-employee members of the Board of Directors primarily for the purpose of (i) joint ventures, technology licensing or research and development activities, (ii) distribution or manufacture of the corporation's products or services or (iii) any other transactions involving corporate partners; and
(7) Common Stock, in a number of shares not to exceed an aggregate of 685,000 shares, issued or issuable to equipment lessors, financial institutions or similar entities in transactions approved by all of the non-employee members of the Board of Directors that are primarily for purposes other than raising equity financing."
2. Section 3.2(b) of the Agreement is hereby amended to read in its entirety as follows:
"(b) Upon the closing of the Company's first public offering of Common Stock which meets all of the following requirements: (a) proceeds (net of underwriting discounts and commissions) to the Company of at least $30,000,000 and (b) a price per share of at least $8.00 (as adjusted for stock splits, stock dividends, recapitalizations and similar events) (clauses (a) and (b) shall be referred to herein as a "Qualified IPO")."
3. Each New Investor is hereby added as a party to the Agreement and shall henceforth be deemed to be an "Investor" and a "Stockholder" for all purposes under the Agreement. Each New Investor acknowledges its receipt and understanding of the Agreement and agrees to be bound as an "Investor" and a "Stockholder" under the Agreement.
4. As amended hereby, the Agreement is ratified and confirmed in all respects.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
/s/ XXXXXX X. XXXXXXXX Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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Signature |
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Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXXX XXXXXX XXXXXX Signature |
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Xxxxxxx XxXxxx Jordan Print Name |
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British Isles, LLC Print Name of Entity (if not natural person) |
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Sole Member Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXXXX XXXXXX XXXXXXX Signature |
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Xxxxxxxx XxXxxx Findlay Print Name |
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Heron I, LLC Print Name of Entity (if not natural person) |
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Sole Member Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXX X. XXXXXX Signature |
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Xxxxxx X. XxXxxx Print Name |
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Five Point, LLC Print Name of Entity (if not natural person) |
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Sole Member Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ Signature |
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Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXX X. XXXXXX Signature |
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Xxxxxx X. Xxxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXX XXXXX Signature |
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Xxxxxx Xxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXXX XXXXX Signature |
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Xxxxxxx Xxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXX X. XXXXXXXX III Signature |
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Xxxx X. Xxxxxxxx III Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXXX XXXXXXXXXX Signature |
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Xxxxxxx Xxxxxxxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXX X. XXXXXXXXX Signature |
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Xxxxxx X. Xxxxxxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXXXX XXXXX Signature |
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Xxxxxx Xxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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/s/ XXXX X. XXXXX Signature |
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Xxxx X. Xxxxx Print Name |
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Print Name of Entity (if not natural person) |
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Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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Anthem Capital II, L.P. |
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By: Anthem Capital Partners, LLC |
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Its: General Partner |
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By: |
/s/ XXXXXX XXXXXXXXX |
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Title: Manager |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
IN WITNESS WHEREOF, this Second Amendment to Second Amended and Restated Investor Rights Agreement, as amended, has been executed as of the date first above written.
IMMUNICON CORPORATION |
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By: |
Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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NEW INVESTORS: |
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Signature |
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Print Name |
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Print Name of Entity (if not natural person) |
||
Title of Signatory (if on behalf of entity) |
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INVESTORS: |
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Xxxxxxx Biotechnology Capital Fund, L.P. |
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By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
/s/ G. XXXXXX XXXXXXX G. Xxxxxx Xxxxxxx, Managing Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
Xxxxxxx Diagnostics Capital Fund, L.P. | |||
By: |
Xxxxxxx & Company LLC, its general partner |
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By: |
/s/ G. XXXXXX XXXXXXX G. Xxxxxx Xxxxxxx, Managing Manager Chief Executive Officer |
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Xxxxxxxx Partners III, L.P. |
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By: |
Xxxxxxxx Partners III LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Name: Xxxxx Xxxxxxxxxx Title: CEO |
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Xxxxxxxx Associates III, L.P. |
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By: |
Xxxxxxxx Partners III, LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Name: Xxxxx Xxxxxxxxxx Title: CEO |
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Xxxxxxxx Foreign Partners III, L.P. |
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By: |
Xxxxxxxx Partners III, LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Name: Xxxxx Xxxxxxxxxx Title: CEO |
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Xxxxxxxx MedTech Partners, L.P. |
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By: |
Xxxxxxxx MedTech Partners, LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Xxxxx Xxxxxxxxxx, Chief Executive Officer |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
LHC Corporation | ||
By: |
/s/ XXXXX X. XXXXXX Name: Xxxxx X. Xxxxxx Title: Executive Vice President |
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MDS Life Sciences Technology Fund Limited Partnership |
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By: |
MDS Life Sciences Technology Fund (GP) Inc., its general partner |
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By: |
/s/ XXXXXX XXXXX Name: Xxxxxx Xxxxx Title: Vice-President |
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By: |
/s/ GRAYSANNE XXXXXX Name: Graysanne Xxxxxx Title: Assistant Secretary |
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MDS Life Sciences Technology Fund USA, L.P. |
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By: |
MDS Capital USA (GP) Inc., its general partner |
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By: |
/s/ XXXXXX X. XXXXXXX Name: Xxxxxx X. Xxxxxxx Title: Director and Secretary |
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By: |
/s/ XXXX XXXXXXXX Name: Xxxx Xxxxxxxx Title: Director |
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MDS Life Sciences Technology Barbados Investment Trust |
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By: |
Name: Xxxxxxxx Xxxxxxx Title: Trustee |
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By: |
/s/ XXXXXXXX XXXXXXX Name: Xxxxxxxx Xxxxxxx Title: Trustee |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
SC Biotechnology Development Fund LP | ||
By: |
SC (GP) Inc. |
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By: |
/s/ Name: Woodbourne Associates (Cayman) Limited Title: Secretary |
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TL Ventures III L.P. |
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By: |
TL Ventures III Management L.P., its general partner |
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By: |
TL Venture III LLC, its general partner |
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By: |
/s/ XXXXXXXXXXX XXXXXX Name: Xxxxxxxxxxx Xxxxxx Title: Managing Director |
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TL Ventures III Offshore L.P. |
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By: |
TL Ventures III Offshore Partners L.P., its general partner |
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By: |
TL Ventures III Offshore Ltd., its general partner |
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By: |
/s/ XXXXXXXXXXX XXXXXX Name: Xxxxxxxxxxx Xxxxxx Title: Managing Director |
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TL Ventures III Interfund L.P. |
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By: |
TL Ventures III LLC, its general partner |
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By: |
/s/ XXXXXXXXXXX XXXXXX Name: Xxxxxxxxxxx Xxxxxx Title: Managing Director |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
Canaan Equity, L.P. | ||
By: |
Canaan Equity Partners, L.L.C. |
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By: |
/s/ Name: Title: Member Management |
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Canaan Equity II L.P. |
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By |
Canaan Equity Partners II LLC |
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By: |
/s/ Name: Title: Member/Manager |
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Canaan Equity II L.P. (QP) |
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By: |
Canaan Equity Partners II LLC |
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By: |
/s/ Name: Title: Member/Manager |
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Canaan Equity II Entrepreneurs LLC |
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By |
Canaan Equity Partners II LLC |
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By: |
/s/ Member/Manager |
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/s/ XXXX X. XXXXXXX Xxxx X. Xxxxxxx, M.D. |
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MedCapital Investments, LLC |
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By: |
MedCapital, LLC |
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By: |
Jan Rock, Administrative Member |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
MedCapital Investments, LLC | ||
By: |
MedCapital, LLC |
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By: |
/s/ JAN ROCK Jan Rock, Administrative Member |
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Foundation Medical Partners, L.P. |
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By: |
Foundation Medical Managers, LLC |
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By: |
/s/ XXXXXXXX COOL Xxxxxxxx Cool, Manager |
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Xxxxxxx & Xxxxxxx Development Corporation |
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By: |
Ting Pau Oei Vice President |
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Anthem Capital, L.P. |
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By: |
Anthem Capital Partners, L.P., its general partner |
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By: |
Anthem Capital Partners, Inc., its general partner |
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By: |
/s/ XXXXXX XXXXXXXXX Name: Xxxxxx Xxxxxxxxx Title: General Partner |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
Cleveland Clinic Foundation | ||
By: |
/s/ DORAS X. XXXXXXXX Name: Doras X. Xxxxxxxx, M.D. Title: Chairman, Dept. Thoracic & Cardiovascular Surgery |
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EquityFourLife (Bahamas) Ltd. |
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By: |
/s/ PACHRIDEE X. XXXXX Name: Pachridee X. Xxxxx Title: Director |
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/s/ XXXXXX X. XXXXXXXX Xxxxxx X. Xxxxxxxx |
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/s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx, Ph.D. |
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Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxx-Xxxxxxxx, as joint tenants by the entireties |
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By: |
/s/ XXXXXX X. XXXXXXXX Xxxxxx X. Xxxxxxxx |
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By: |
/s/ XXXXX XXXXXX-XXXXXXXX Xxxxx Xxxxxx-Xxxxxx |
[COUNTERPART SIGNATURE PAGE TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED]
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, AS AMENDED