THIRD AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this "Amendment") is made and entered into as of March 15, 2004, by and among Immunicon Corporation, a Delaware corporation (the "Company"), and certain entities and persons that are parties 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 and as further amended on June 30, 2003 (the "Agreement"). 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.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
- (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 2,766,667 shares of Common Stock (as adjusted for stock splits,
stock dividends, recapitalizations and similar events);
- (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 456,667 shares (as adjusted for stock splits, stock dividends, recapitalizations and similar events), 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 456,667 shares (as adjusted for stock splits, stock dividends, recapitalizations and similar events), 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; and
1. Section 3.1(g) of the Agreement is hereby amended to read in its entirety as follows (with the numbers below giving effect to the Company's March 2004 two-for-three reverse stock split):
"(g) The rights of the Investors under this Section 3 shall not apply to:
- (8)
- Common Stock issued or issuable in connection with a Qualified IPO (as defined below)."
2. Section 3.2(b) of the Agreement is hereby amended to read in its entirety as follows (with the numbers below giving effect to the Company's March 2004 two-for-three reverse stock split):
"(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 (x) at least $9.00 if such public offering is consummated on or prior to June 30, 2004, or (y) at least $12.00 if such public offering is consummated after June 30, 2004 (in each case 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. As amended hereby, the Agreement is ratified and confirmed in all respects.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Third Amendment to Second Amended and Restated Investor Rights Agreement has been executed as of the date first above written.
IMMUNICON CORPORATION | |||
By: |
/s/ XXXXXX X. XXXXXXXX Xxxxxx X. Xxxxxxxx, Chief Executive Officer |
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INVESTORS: Xxxxxxx Biotechnology Capital Fund, L.P. By: Xxxxxxx & Company LLC, its general partner |
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By: |
/s/ G. XXXXXX XXXXXXX G. Xxxxxx Xxxxxxx, Managing Member |
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Xxxxxxx Life Sciences Capital Fund, L.P. By: Xxxxxxx & Company LLC, its general partner |
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By: |
/s/ G. XXXXXX XXXXXXX G. Xxxxxx Xxxxxxx, Managing Member |
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Xxxxxxxx Partners III, L.P. By: Xxxxxxxx Partners III LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Name: Xxxxx Xxxxxxxxxx Title: CEO |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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Xxxxxxxx Associates III, L.P. 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, L.P. 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. By: Xxxxxxxx MedTech Partners, LLC, its general partner |
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By: |
/s/ XXXXX XXXXXXXXXX Name: Xxxxx Xxxxxxxxxx Title: CEO |
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LHC Corporation |
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By: |
/s/ XXXXX X. XXXXXX Name: Xxxxx X. Xxxxxx Title: Executive Vice President |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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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/ GRAYSANNE XXXXXX Name: Graysanne Xxxxxx Title: Assistant Secretary |
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By: |
/s/ XXXX XXXXXX Name: Xxxx Xxxxxx Title: Vice President |
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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 | ||
By: |
/s/ XXXXXX X. XXXXXXX Name: Xxxxxx X. Xxxxxxx Title: Director |
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MDS Life Sciences Technology Barbados Investment Trust |
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By: |
Name: Title: |
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SC Biotechnology Development Fund LP |
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By: | SC (GP) Inc. | ||
By: |
/s/ XXXX XXXXXXXX Name: Xxxx Xxxxxxxx |
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By: |
/s/ XXXX XXXXXXX Name: Xxxx Xxxxxxx |
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Title: For and On Behalf of Cardinal Investments Limited, Director of SC (GP) Inc., General Partner of SC Biotechnology Development Fund, L.P. |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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TL Ventures III L.P. By: TL Ventures III Management L.P., its general partner By: TL Venture III LLC, its general partner |
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By: |
/s/ XXXXXX X. XXXXXXXXXX Name: Xxxxxx X. Xxxxxxxxxx Title: Chief Financial Officer |
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TL Ventures III Offshore L.P. By: TL Ventures III Offshore Partners L.P., its general partner By: TL Ventures III Offshore Ltd., its general partner |
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By: |
/s/ XXXXXX X. XXXXXXXXXX Name: Xxxxxx X. Xxxxxxxxxx Title: Chief Financial Officer |
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TL Ventures III Interfund L.P. By: TL Ventures III LLC, its general partner |
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By: |
/s/ XXXXXX X. XXXXXXXXXX Name: Xxxxxx X. Xxxxxxxxxx Title: Chief Financial Officer |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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Canaan Equity, L.P. By: Canaan Equity Partners, L.L.C. |
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By: |
/s/ XXX X. XXXXX Name: Xxx X. Xxxxx Title: Member/Manager |
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Canaan Equity II L.P. By: Canaan Equity Partners II LLC |
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By: |
/s/ XXX X. XXXXX Name: Xxx X. Xxxxx Title: Member/Manager |
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Canaan Equity II L.P. (QP) By: Canaan Equity Partners II LLC |
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By: |
/s/ XXX X. XXXXX Name: Xxx X. Xxxxx Title: Member/Manager |
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Canaan Equity II Entrepreneurs LLC By: Canaan Equity Partners II LLC |
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By: |
/s/ XXX X. XXXXX Name: Xxx X. Xxxxx Title: Member/Manager |
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By: |
/s/ XXXX X. XXXXXXX Xxxx X. Xxxxxxx, M.D. |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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MedCapital Investments, LLC By: MedCapital, LLC |
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By: |
Jan Rock, Administrative Member |
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Foundation Medical Partners, L.P. By: Foundation Medical Managers, LLC |
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By: |
/s/ XXXXXXXX COOL Xxxxxxxx Cool, Manager |
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Anthem Capital, L.P. By: Anthem Capital Partners, L.P., its general partner By: Anthem Capital Partners, Inc., its general partner |
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By: |
/s/ XXXXXX X. XXXXXXXXX Name: Xxxxxx X. Xxxxxxxxx Title: General Partner |
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Anthem Capital II, L.P. By: Anthem Capital Partners, LLC, its general partner |
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By: |
/s/ XXXXXX X. XXXXXXXXX Name: Xxxxxx X. Xxxxxxxxx Title: General Partner |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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Xxxxxxx & Xxxxxxx Development Corporation |
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By: |
/s/ TING PAU OEI Name: Ting Pau Oei Title: Vice President |
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Cleveland Clinic Foundation |
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By: |
/s/ XXXXX X. XXXXXXXX Name: Xxxxx X. Xxxxxxxx, M.D. Title: Chairman, Dept. Thoracic and Cardiovascular Surgery |
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EquityFourLife (Bahamas) Ltd. |
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By: |
/s/ X. XXXXX Name: X. Xxxxx Title: Director |
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By: |
/s/ INELLIGIBLE Name: Inelligible Title: Director |
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Xxxxxxxx Associates Inc. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx |
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By: |
/s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx, Ph.D. |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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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-Xxxxxxxx |
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British Isles, LLC |
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By: |
/s/ XXXXXXX XXXXXX JORDAN Name: Xxxxxxx XxXxxx Xxxxxx Title: |
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Heron I, LLC |
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By: |
/s/ XXXXXXXX X. XXXXXXX Name: Xxxxxxxx X. Xxxxxxx Title: |
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Five Point, LLC |
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By: |
/s/ XXXXXX X. XXXXXX Name: Xxxxxx X. XxXxxx Title: |
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Research and Diagnostic Systems, Inc. |
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By: |
/s/ XXXXXX X. XXXXX Name: Xxxxxx X. Xxxxx Title: President |
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/s/ XXXXXX XXXXX Xxxxxx Xxxxx |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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/s/ XXXXXXX X. XXXXX Xxxxxxx X. Xxxxx, M.D. |
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/s/ XXXXXX X. XXXXXXXXX Xxxxxx X. Xxxxxxxxx |
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/s/ XXXXXXX XXXXXXXXXX Xxxxxxx Xxxxxxxxxx |
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/s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx III |
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/s/ XXXXXXX X. XXXX Xxxxxxx X. Xxxx |
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/s/ XXXX X. XXXXX Xxxx X. Xxxxx |
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/s/ XXXXXX X. XXXXXX Xxxxxx X. Xxxxxx, M.D. |
[COUNTERPART SIGNATURE PAGE TO
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT]
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THIRD AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT