SECOND STOCKHOLDERS' AGREEMENTS AMENDMENT
Exhibit 4.4
SECOND STOCKHOLDERS' AGREEMENTS AMENDMENT
This Second Stockholders' Agreements Amendment dated as of February 7, 2015 (this "Amendment") is an amendment to (i) the Third Amended and Restated Voting Agreement, dated as of December 18, 2013, as amended by Amendment No. 1 dated February 18, 2014 and by the Stockholders' Agreements Amendment dated as of July 11, 2014 (the "Voting Agreement"), among the Company and the investors listed therein; (ii) the Third Amended and Restated Investors' Rights Agreement, dated as of December 18, 2013, as amended by the Stockholders' Agreements Amendment dated as of July 11, 2014, among the Company and the investors listed therein (the "Investors' Rights Agreement");and (iii) the Third Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of December 18, 2013, as amended by the Stockholders' Agreements Amendment dated as of July 11, 2014, among the Company and the investors listed therein (the "ROFR Agreement" and, together with the Voting Agreement and the Investors' Rights Agreement, the "Stockholders' Agreements").
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1. Any references to "Notes" in the Stockholders Agreements shall be deemed to include the February Notes.
2. The Investors' Rights Agreement is hereby amended by inserting the following provision as Section 3.4 to the Investors' Rights Agreement:
"3.4 Confidentiality. Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Agreement (including notice of the Company's intention to file a registration statement), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 3.4 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of the Company's confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from such Investor, if such prospective purchaser agrees to be bound by the provisions of this Section 3.4; (iii) to any Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business, provided that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information; or (iv) as may otherwise be required by law, provided that the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure."
(a) Ratification of the Stockholders' Agreements. Except as specifically amended hereby, the Stockholders' Agreements shall remain in full force and effect and is hereby ratified and confirmed in all respects.
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(b) Counterparts. This Amendment may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which shall be an original, but all of which together shall constitute one instrument.
(c) Governing Law. This Amendment shall be governed by and construed in accordance with the applicable provisions of the Stockholders' Agreements.
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COMPANY:
OPGEN, INC.
By: /s/ C. Xxxx Xxxxxx
Name: C. Xxxx Xxxxxx
Name: C. Xxxx Xxxxxx
Title: Chief Financial Officer
[Signature Page to Second Stockholder's Agreements Amendment]
STOCKHOLDERS:
CHL MEDICAL PARTNERS III, L.P.
By: | CHL Medical Partners III, LLC, its General Partner |
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: EVP
CHL MEDICAL PARTNERS III SIDE FUND, L.P.
By: CHL Medical Partners III, LLC, its
General Partner
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: EVP
[Signature Page to Second Stockholder's Agreements Amendment]
STOCKHOLDERS:
XXXXXX & XXXXXX GROUP, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title:
Name: Xxxxxx Xxxxx
Title:
[Signature Page to Second Stockholder's Agreements Amendment]
STOCKHOLDERS:
jVEN CAPITAL, LLC
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Authorized Signatory
Name: Xxxx Xxxxx
Title: Authorized Signatory
[Signature Page to Second Stockholder's Agreements Amendment]
STOCKHOLDERS:
VERSANT VENTURE CAPITAL III, L.P.
By: Versant Ventures III, LLC,
its General Partner
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
VERSANT SIDE FUND III, L.P.
By: Versant Ventures III, LLC,
its General Partner
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
[Signature Page to Second Stockholder's Agreements Amendment]