EXHIBIT 10.17(F)
SIXTH AMENDMENT TO
INVESTOR RIGHTS AGREEMENT
THIS SIXTH AMENDMENT TO INVESTOR RIGHTS AGREEMENT (the "Sixth
Amendment") is entered into this 24th day of March, 2004, by and among Animas
Corporation, a Delaware corporation (the "Company"), certain holders of the
Company's Series A Preferred Stock (the "Series A Investors"), $.01 par value
per share (the "Series A Preferred Stock"), certain holders of the Company's
Series B Convertible Preferred Stock (the "Series B Investors"), $0.01 par value
per share (the "Series B Preferred Stock"), and the Company's Series C
Convertible Preferred Stock(the "Series C Investors," and collectively with the
Series A Investors and Series B Investors, the "Investors"), $0.01 par value per
share (the "Series C Preferred Stock").
WHEREAS, the Company and the Series A Investors are parties to
an Investor Rights Agreement dated as of January 28, 2000 (the "Original
Agreement"), as amended by that certain First Amendment to Investor Rights
Agreement dated as of January 22, 2001 (the "First Amendment"), as amended by
that certain Second Amendment to Investor Rights Agreement dated as of October
11, 2001 (the "Second Amendment"), as amended by that certain Third Amendment to
Investor Rights Agreement dated as of May 13, 2002 (the "Third Amendment"), as
amended by that certain Fourth Amendment to Investor Rights Agreement dated as
of January 21, 2003 (the "Fourth Amendment"), and as amended by that Fifth
Amendment to Investor Rights Agreement dated as of November 18, 2003 (the "Fifth
Amendment," and collectively with the First Amendment, the Second Amendment, the
Third Amendment and the Fourth Amendment and with all joinders thereto, the
"Investor Rights Agreement");
WHEREAS, the Series A Investors hold shares of the Company's
Series A Preferred Stock and possess certain registration and other rights with
respect to such Series A Preferred Stock under the Investor Rights Agreement;
WHEREAS, the Company previously sold and issued 1,500,000
shares of Series B Preferred Stock to the Series B Investors, pursuant to a
Series B Convertible Preferred Stock Purchase Agreement dated January 22, 2001
(the "Series B Purchase Agreement");
WHEREAS, in connection with and consideration for the
execution and delivery of the Series B Purchase Agreement, the Company extended
certain registration and other rights to the Series B Investors, pursuant to a
Registration Rights Agreement dated January 22, 2001 and entered into by and
among the Company and the Series B Investors (the "Registration Rights
Agreement");
WHEREAS, pursuant to the First Amendment, the Company and
certain of the Series A Investors amended the Original Agreement to enable the
Series B Investors to receive certain registration and other rights under the
Registration Rights Agreement, which were superior to those of the Series A
Investors and to participate in certain other rights with the Series A
Investors;
WHEREAS, subsequently, the Company sold and issued 200,000
shares of Series C Preferred Stock, including the Additional Series C Preferred
Stock (as defined in the Third
1
Amendment) to the Series C Investors, pursuant to a Series C Convertible
Preferred Stock Purchase Agreement dated October 11, 2001 (as amended, the
"Series C Purchase Agreement");
WHEREAS, in connection with and consideration for the Series C
Purchase Agreement, the Company and the Series A Investors extended certain
registration and other rights to the Series C Investors, pursuant to an Amended
and Restated Registration Rights Agreement entered into by and among the
Company, the Series B Investors and the Series C Investors (as amended, the
"Amended and Restated Registration Rights Agreement");
WHEREAS, the Company and the Series A Investors amended the
Original Agreement and terminated the First Amendment by entering into the
Second Amendment to enable the Series B Investors and the Series C Investors to
receive certain registration and other rights under the Amended and Restated
Registration Rights Agreement which are superior to those of the Series A
Investors and to participate in certain other rights with the Series A
Investors;
WHEREAS, the Company and certain Investors further amended the
Original Agreement by entering into the Third Amendment;
WHEREAS, the Company and certain Investors further amended the
Original Agreement by entering into the Fourth Amendment to enable the
purchasers (a "Unit Purchaser" and, collectively, "Unit Purchasers") of the
Company's units (the "Units"), consisting of one (1) share of Series C Preferred
Stock and a warrant to purchase nine-tenths (0.9) of one (1) share of Series C
Preferred Stock (the "Warrants"), issued pursuant to Unit Purchase Agreements
dated January 21, 2003 and March 21, 2003, among the Company and the purchasers
thereunder, to receive certain registration and other rights under the Amended
and Restated Registration Rights Agreement, which are superior to those of the
Series A Investors and to participate in certain other rights with the Series A
Investors;
WHEREAS, the Company and certain Investors further amended the
Original Agreement by entering into the Fifth Amendment to enable a Unit
Purchaser of the Units, issued pursuant to a Unit Purchase Agreement dated
November 18, 2003, among the Company and the purchaser thereunder, to receive
certain registration and other rights under the Amended and Restated
Registration Rights Agreement, which are superior to those of the Series A
Investors and to participate in certain other rights with the Series A
Investors;
WHEREAS, certain Unit Purchasers acquired Units from the
Company pursuant to a Unit Purchase Agreement dated January 21, 2003, a Unit
Purchase Agreement dated March 21, 2003, a Unit Purchase Agreement dated
November 18, 2003 or any other Unit Purchase Agreement pursuant to which certain
holders of the Company's capital stock acquire Units in the Company;
WHEREAS, the Company refinanced and increased its line of
credit pursuant to the Loan and Security Agreement dated as of November 7, 2003
(the "2003 SVB Line of Credit"), by and among the Company, Animas Diabetes Care,
LLC and Silicon Valley Bank, a California chartered bank ("SVB"), and in
connection with the 2003 SVB Line of Credit, issued
-2-
a warrant to purchase 5,000 shares of Series C Preferred Stock to SVB (the "2003
SVB Warrant");
WHEREAS the Company and the Holders (as defined in the Fourth
Amendment to Amended and Restated Registration Rights Agreement , dated as of
the date herein) desire to amend the Amended and Restated Registration Rights
Agreement to subject all Unit Purchasers to those certain rights and obligations
as set forth in the Amended and Restated Registration Rights Agreement;
WHEREAS, the Company and the Holders (as defined in the Fourth
Amendment to Amended and Restated Registration Rights Agreement , dated as of
the date herein) desire to amend the Amended and Restated Registration Rights
Agreement to make all Warrants and the 2003 SVB Warrant subject to the
Registration Rights Agreement;
WHEREAS, the Company and the Investors desire to amend the
Investor Rights Agreement to enable the Unit Purchasers and SVB to receive
certain registration and other rights under the Amended and Restated
Registration Rights Agreement, which are superior to those of the Series A
Investors and to participate in certain other rights with the Series A
Investors; and
WHEREAS, Section 5 of the Second Amendment, and Sections 2.9
and 2.10 of the Original Agreement, which apply with equal force and effect to
this Sixth Amendment, provide that the Investor Rights Agreement, may be amended
or modified upon the written consent of (i) the Company, (ii) the Initial Series
B Investors (as defined in the Amended and Restated Registration Rights
Agreement) holding at least 60% of the votes entitled to be cast by the holders
of Series B Conversion Shares (as defined in the Amended and Restated
Registration Rights Agreement) then held by all such Initial Series B Investors,
solely with respect to such Series B Conversion Shares, (iii) the Initial Series
C Investors (as defined in the Amended and Restated Registration Rights
Agreement) holding at least 60% of the votes entitled to be cast by the holders
of Series C Conversion Shares (as defined in the Amended and Restated
Registration Rights Agreement) then held by all such Initial Series C Investors,
solely with respect to such Series C Conversion Shares, (iv) the holders of a
majority of the votes entitled to be cast by the holders of the Registrable
Securities (as defined in the Amended and Restated Registration Rights
Agreement) then outstanding, solely with respect to such Registrable Securities,
and (v) the holders of a majority of the Registrable Securities then outstanding
(for purposes of this Sixth Amendment, collectively, the "Requisite Shares").
NOW THEREFORE, in consideration of the premises of the mutual
promises, covenants and agreement contained in this Sixth Amendment, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree as follows:
1. Defined Terms. Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Investor
Rights Agreement.
2. Amendments to Investor Rights Agreement.
a. Additional Defined Terms. The following
additional defined terms are hereby added to the Investor Rights Agreement:
-3-
i) "Unit Purchase Agreements" shall
mean, collectively, that certain Unit Purchase Agreement dated January 21, 2003
(together with all joinders thereto), that certain Unit Purchase Agreement dated
March 21, 2003 (together will all joinders thereto), that Unit Purchase
Agreement dated November 18, 2003 (together will all joinders thereto), and any
other Unit Purchase Agreement among the Company and any other parties thereto
pursuant to which such other party or parties acquired Units.
b. Amendments to Existing Definitions. The
following existing defined terms of the Investor Rights Agreement are hereby
amended:
i) The term "Amended and Restated
Registration Rights Agreement" shall be amended in its entirety and, from and
after the date hereof, shall mean the Amended and Restated Registration Rights
Agreement, dated October 11, 2001, as amended by the First Amendment to the
Amended and Restated Registration Rights Agreement, dated May 13, 2002, the
Second Amendment to the Amended and Restated Registration Rights Agreement,
dated January 21, 2003, the Third Amendment to the Amended and Restated
Registration Rights Agreement, dated November 18, 2003, and the Fourth Amendment
to the Amended and Restated Registration Rights Agreement, dated as of the date
of this Sixth Amendment, in each case among the Company and the persons
identified therein;
ii) The term "SVB Warrants" shall be
amended in its entirety and, from and after the date hereof, shall mean any
warrants issued or which may be issued to SVB to purchase up to 10,000 shares
(subject to adjustment for stock splits, dividends, reclassifications,
exchanges, combinations or substitutions) of Series C Preferred Stock (including
but not limited to those certain warrants to purchase 5,000 shares of Series C
Preferred Stock issued to SVB on November 4, 2002 and those certain warrants to
purchase 5,000 shares of Series C Preferred Stock issued to SVB on December 31,
2003); and
iii) The term "Unit Purchase Agreement"
shall be deleted from this Agreement and replaced in its entirety with the
definition of "Unit Purchase Agreements" described above.
3. Further Effect of Original Agreement. Except as
otherwise amended herein, all other provisions of the Investor Rights Agreement
shall remain in full force and effect and are hereby ratified and confirmed.
4. Governing Law. This Sixth Amendment and all questions
relating to its validity, interpretation, performance and enforcement shall be
governed and construed in accordance with the laws of the Commonwealth of
Pennsylvania, notwithstanding any conflict of laws doctrines of such
Commonwealth or any other jurisdiction to the contrary.
5. Counterparts; Facsimile Execution. This Sixth
Amendment may be executed in any number of counterparts, including by facsimile
signature, each of which shall be an original and all of which, when taken
together, shall be deemed one and the same agreement.
6. Effective Time. This Sixth Amendment shall become
effective and legally binding upon the Company and the other parties hereto, and
shall be deemed to effectively amend the Investor Rights Agreement, when one or
more counterparts hereof,
-4-
individually or taken together, shall bear the signatures of the holders of the
Requisite Shares (or their designated representatives).
-5-
IN WITNESS WHEREOF, the parties hereto have executed, or
caused this Sixth Amendment to Investor Rights Agreement to be executed by its
duly authorized officer or other representative, on the date and year first
above written.
ANIMAS CORPORATION
By: \s\ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
\s\ Xxxxxxxxx Xxxxxxxx
-----------------------------------
XXXXXXXXX XXXXXXXX, PRESIDENT
AND CHIEF EXECUTIVE OFFICER OF
ANIMAS CORPORATION, SIGNING
PURSUANT TO THE POWER OF
ATTORNEY GRANTED BY:
XXXXXXXXX XXXXXXXX XXXXXX XXXXX
XXXXXX XXXXXXXX TENNYSON FUND II, LLLP
XXXXX XXXXXXXX TRUST XXX XXXXXXX XXXXXXX
XXXXX XXXXXXXX TRUST XXXXXXXXX X. XXXXXXX
XXXXXXXXX XXXXXXXX TRUST XXXXXXX X. XXXXXXX
XXXXX XXXXXXXX TRUST D.L.O. XXXXX
XXXX CROTHALL TRUST X.X. XXXXX/XXXXXXX X. XXXXX
XXXXXXX X. XXXXXX, XX XXXXX X. XXX, XX
TRUST UNDER AGREEMENT FOR XXXX X. XXXXX
XXXXXXX X. XXXXXX, V GRAHAME XXXXX XXXXXX
TRUST UNDER AGREEMENT FOR XXXXX XXXXX
XXXXX X. XXXXXX XXXX XXXXX
HLM/UH FUND L.P. CITY NATIONAL BANK TTEE FBO
HLM OPPORTUNITIES FUND, L.P. DWT/XXXXXXX
HLM/CB FUND II, L.P. XXXXXX X. XXXXXX, XX
LIBERTY ADVISORS, INC. XXXXXX X. X. XX
LIBERTY VENTURES I, L.P. XXXXXXX X. XXXXXXXX
LIBERTY VENTURES II, L.P. XXXX X. XXXXXXXX
TDH CAPITAL PARTNERS XXXX XXX XXXXXXXX
ANVERS L.P. XXXXXXX XXXXX
ANVERS II X.X. XXXXXXX XXXXXX HYBRID PARTNERS II, X.X.
XX ASSOCIATES
-6-
