Exhibit 10.17
[EXECUTION VERSION]
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT (the "AMENDMENT")
is made and entered into as of the 16th day of July, 2001 by and among Given
Imaging Ltd. (the "COMPANY"), PW Juniper Crossover Fund, LLC ("JUNIPER"),
OrbiMed Advisors, LLC ("ORBIMED ADVISORS"), the Ordinary Shareholders listed
on EXHIBIT A hereto and certain holders of Series A Shares listed on EXHIBIT
B (the "ORBIMED INVESTORS" and, together with the Ordinary Shareholders, the
"REQUISITE PARTIES").
RECITALS
WHEREAS, the Company, the Requisite Parties and certain other
individuals and entities entered into an Investor Rights Agreement (the
"INVESTOR RIGHTS AGREEMENT"), dated as of September 15, 2000;
WHEREAS, pursuant to Section 7.3 of the Investor Rights Agreement, the
consent of the Company, the holders of at least two-thirds of the outstanding
Series A Shares and the holders of at least two-thirds of the outstanding
Ordinary Shares held by the Ordinary Shareholders, is required to amend the
Investor Rights Agreement;
WHEREAS, the Requisite Parties own the number of Ordinary Shares and
Series A Shares set forth on EXHIBITS C AND D hereto, respectively, sufficient
to amend the Investor Rights Agreement; and
WHEREAS, the Company and the Requisite Parties desire that Juniper and
OrbiMed Advisors shall become parties to the Investor Rights Agreement and
further desire to amend the Investor Rights Agreement, in each case in
accordance with the terms of this Amendment.
AGREEMENT
NOW THEREFORE, in consideration of the premises and mutual covenants
contained in this agreement, the parties hereto hereby agree as follows:
1. AMENDMENT. The parties hereby agree that the following
amendments shall be made to the Registration Rights Agreement:
(a) In Section 1.3, the definition of "Registrable Securities"
shall be deleted and replaced in its entirety by the following:
"REGISTRABLE SECURITIES" shall mean (i) Ordinary Shares or other
securities issued or issuable pursuant to the conversion of the Series
A Shares; (ii) Ordinary Shares or other securities issued or issuable
with respect to the Series A Shares by reason of any share split, share
dividend, recapitalization, reorganization, merger, consolidation, sale
of assets or similar event (a "Reorganization"), (iii) Ordinary
Shares held by the Ordinary Shareholders on the date hereof (and
expressly excluding any such shares acquired by the Ordinary
Shareholders after the date hereof other than as described in the
immediately following clauses (iv) and (vi)), (iv) Ordinary Shares
issued or issuable pursuant to the exercise of options originally
issued to Discount Investment Corporation Ltd. PEC Israel Economic
Corporation Ltd., Elron Electronics Industries, ThermoTrex Corporation
and Trimaran Investment Trust, that are subject to that certain Option
Amendment Agreement, dated August 9, 2000, between the Company and such
entities, (v) Ordinary Shares issued or issuable to OrbiMed Advisors
and the OrbiMed Investors in lieu of options to be granted pursuant to
Section 4.2 of the Investor Rights Agreement prior to this Amendment,
and (vi) other Ordinary Shares or other securities issued or issuable
with respect to the Ordinary Shares referred to in the immediately
preceding clauses (i), (iii), (iv) or (v) in connection with any
Reorganization; PROVIDED, HOWEVER, that Registrable Securities shall
not include securities which have been (a) registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration
statement covering them, (b) publicly sold pursuant to Rule 144 under
the Securities Act, or (c) sold by a person in a transaction in which
the holder's registration rights have not been assigned in accordance
with Section 3.14 hereof. Wherever reference is made in this Agreement
to a request or consent of holders of a certain percentage of
Registrable Securities, or a right attaching to holders of Registrable
Securities, the determination of such percentage shall be calculated on
the basis of shares of Ordinary Shares issued or issuable upon
conversion of the Series A Preferred Shares, and such right shall
likewise inure to the benefit of the holders of Series A Preferred
Shares, even if such conversion has not been effected.
(b) Juniper shall be deemed to be included in the definition of
"Ordinary Shareholders" for all purposes under the Investor Rights Agreement,
PROVIDED, HOWEVER, that any references to "the date hereof" or other terms of
similar import shall, with respect to Juniper, mean the date of this Amendment.
(c) The first two sentences of Section 4.2 are hereby deleted. The
OrbiMed Investors and the Company hereby release each other from any obligation
pursuant such sentences. It is agreed that in lieu of the issuance of options to
purchase Ordinary Shares to the OrbiMed Director, the Company shall issue
options to the OrbiMed Investors as follows:
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ENTITY NO. OF ORDINARY SHARES SUBJECT TO OPTION
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Caduceus Private Investments L.P. 3,596
OrbiMed Advisors LLC 3,596
Xxxxx Xxxxx Worldwide Health Sciences Portfolio 1,283
Finsbury Worldwide Pharmaceutical Trust 1,283
OrbiMed Associates LLC 242
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(d) Exhibit A to the Investor Rights Agreement is amended so that the
name of "Xxxxxxxx Xxxxx" is inserted beneath "Trimaran Investment Trust" such it
is clarified that "Xxxxxxxx Xxxxx" is an Ordinary Shareholder.
2. INTERPRETATION.
(a) From and after the date of this Amendment, all references in the
Investor Rights Agreement to the Agreement shall be deemed to be references to
the Agreement as amended hereby.
(b) Capitalized terms used and not defined herein shall have the
meaning ascribed thereto in the Investor Rights Agreement.
3. MISCELLANEOUS
(a) TRANSFER; SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the terms and conditions of this Amendment shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Amendment, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Amendment, except as expressly provided in this Amendment.
(b) GOVERNING LAW. This Amendment, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of
New York excluding the conflict
of laws provisions thereof.
(c) NOTICES. Any and all notices, requests, consents and other
communications hereunder and under the Investor Rights Agreement shall be sent
in accordance with the Investor Rights Agreement and, in the case of Juniper and
OrbiMed Associates to the addresses set forth alongside their respective
signatures.
(d) LIMITATION. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Investor Rights Agreement.
(e) 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.
[Remainder of page intentionally left blank]
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The parties hereto have executed this Amendment No. 1 to the
Registration Rights Agreement as of the date first written above.
GIVEN IMAGING LTD.
By: Xxx Xxx Xxxxx
---------------------------------------
Name: Xxx Xxx Xxxxx
Title: VP & CFO
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
PW JUNIPER CROSSOVER FUND, LLC
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO of Member of Managing Member
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
ORBIMED ADVISORS, LLC
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
RDC XXXXXX DEVELOPMENT CORPORATION LTD.
By: /s/ Yoran Tal Xxxxxx Xxxxx
------------------------------------
Name: Yoran Tal Xxxxxx Xxxxx
Title: Director CEO
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
DISCOUNT INVESTMENT CORPORATION LTD.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title:
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
ELRON ELECTRONIC INDUSTRIES LTD.
By: /s/ Xxx Xxxx Xxxxx Xxxxxx
---------------------------------
Name: Xxx Xxxx Xxxxx Xxxxxx
Title: CEO CFO
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
THERMO ELECTRON CORPORATION
By: /s/ Theo Relas-Kyriazi
--------------------------------
Name: Theo Relas-Kyriazi
Title: CFO, VP
SIGNATURE PAGE TO
GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
TRIMARAN INVESTMENT TRUST
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
SIGNATURE PAGE TO GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
CADUCEUS PRIVATE INVESTMENTS, L.P.
By: OrbiMed Capital, LLC, its general partner
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO
SIGNATURE PAGE TO GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
XXXXX XXXXX WORLDWIDE HEALTH
SCIENCES PORTFOLIO
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO of Investment Manager
SIGNATURE PAGE TO GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
FINSBURY WORLDWIDE PHARMACEUTICAL TRUST
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO of Investment Manager
SIGNATURE PAGE TO GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
ORBIMED ASSOCIATES, LLC
By: OrbiMed Advisors, LLC, its managing member
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO
SIGNATURE PAGE TO GIVEN IMAGING LTD.
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
EXHIBIT A
ORDINARY HOLDERS
RDC Xxxxxx Development Corporation Ltd.
Discount Investment Corporation Ltd.
Elron Electronic Industries Ltd.
Thermo Electron Corporation
Trimaran Investment Trust
EXHIBIT B
ORBIMED INVESTORS
Caduceus Private Investments L.P.
Xxxxx Xxxxx Worldwide Health Sciences Fund
Finsbury Worldwide Pharmaceutical Trust
OrbiMed Associates LLC
EXHIBIT C
ORDINARY HOLDERS
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NAME NO. OF ORDINARY SHARES % OF OUTSTANDING ORDINARY
SHARES HELD BY ORDINARY
SHAREHOLDERS (AS DEFINED IN
THE INVESTOR RIGHTS
AGREEMENT)
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RDC Xxxxxx Development Corporation Ltd. 8,286,732 56.7%
Discount Investment Corporation Ltd. 3,026,152 20.7%
Elron Electronic Industries Ltd. 1,513,076 10.4%
Thermo Electron Corporation 1,125,000 7.7%
Trimaran Investment Trust 656,990 4.5%
TOTAL 14,607,950 100%
Total outstanding Ordinary Shares held by
Ordinary Shareholders 14,607,950
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EXHIBIT D
SERIES A HOLDERS
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NAME NO. OF SERIES A % OF OUTSTANDING
PREFERRED SHARES SERIES A PREFERRED
SHARES
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RDC Xxxxxx Development Corporation Ltd. 2,853,067 18.8%
Discount Investment Corporation Ltd. 2,240,138 14.7%
Elron Electronic Industries Ltd. 1,120,071 7.4%
Trimaran Investment Trust 63,412 0.4%
Caduceus Private Investments L.P. 4,585,459 30.2%
Xxxxx Xxxxx Worldwide Health Sciences Fund 902,877 5.9%
Finsbury Worldwide Pharmaceutical Trust 902,877 5.9%
OrbiMed Associates LLC 170,653 1.1%
TOTAL 12,838,554 84.5%
Total outstanding Series A Preferred Shares 15,193,086
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