Exhibit 10.18
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, is made as of this
11th day of October, 2001, by and among Animas Corporation, a Delaware
corporation (the "Company"), those individuals or entities listed on the
signature pages hereto as "Prior Stockholders" and which execute a Prior
Stockholder Signature Page in the form attached hereto as Exhibit A
(collectively, the "Prior Stockholders"), those individuals or entities listed
on the signature pages hereto as "Series B Investors" (each a "Series B
Investor" and collectively, the "Series B Investors"), and those individuals or
entities listed on the signature pages hereto as "Series C Investors" (each a
"Series C Investor" and collectively, the "Series C Investors"). The Prior
Stockholders, Series B Investors and Series C Investors are each referred to
herein as a "Stockholder" and collectively as the "Stockholders."
WHEREAS, the Prior Stockholders are certain of the holders of an
aggregate of 4,651,868 shares of the Company's Common Shares (defined below) and
1,003,600 shares of the Company's Series A Preferred Stock, $.01 par value per
share (the "Series A Preferred Stock");
WHEREAS, the Prior Stockholders possessed certain voting and other
rights pursuant to a Voting Agreement dated January 28, 2000 between the Company
and the Prior Stockholders (the "Prior Voting Agreement");
WHEREAS, pursuant to a certain Series B Convertible Preferred Stock
Purchase Agreement dated January 22, 2001 (the "Series B Purchase Agreement"),
the Series B Investors purchased an aggregate of 1,500,000 shares of Series B
Convertible Preferred Stock, $.01 par value per share (the "Series B Preferred
Stock");
WHEREAS, pursuant to the Series B Purchase Agreement the Company, the
Series B Investors and the Prior Stockholders entered into a Stockholders
Agreement dated January 22, 2001 (the "Existing Stockholders Agreement"),
pursuant to which the Prior Voting Agreement was terminated and the Prior
Stockholders and the Series B Investors (collectively, the "Current
Stockholders"), accepted certain rights and obligations created pursuant
thereto;
WHEREAS, the Series C Investors are parties to a Series C Convertible
Preferred Stock Purchase Agreement of even date herewith (the "Series C Purchase
Agreement"), pursuant to which the Company has agreed to sell and issue to such
Series C Investors an aggregate of 1,281,762 shares at an initial closing (such
agreement contemplating the sale of up to an additional aggregate of 718,238
shares at a subsequent closing) of Series C Convertible Preferred Stock, $.01
par value per share (the "Series C Preferred Stock");
WHEREAS, the execution of this Agreement is a condition precedent to
the Series C Purchase Agreement;
WHEREAS, in connection with the consummation of the transactions
contemplated by the Series C Purchase Agreement the Company, the Current
Stockholders and the Series C Investors have agreed to enter into this Agreement
in order to provide for the future voting of
Exhibit 10.18
their shares of the Company's capital stock, the grant of certain transfer
rights to the parties, and other matters set forth below; and
WHEREAS, the Stockholders desire to amend and restate the Existing
Stockholders Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereby agree
with each other as follows:
1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following respective meanings:
(a) "Common Stock" shall mean and include all shares of
the Company's Common Stock, $.01 par value per share (the "Common Shares")
including, without limitation, all Common Shares issued or issuable upon
conversion of the Preferred Stock, and all other securities of the Company then
convertible or exchangeable for Common Shares (whether by way of stock split,
stock dividend, combination, reclassification, reorganization, or any other
means).
(b) "Initial Series B Purchasers" shall have the meaning
ascribed to such term in the Series B Purchase Agreement.
(c) "Investors" shall mean, collectively, the Series B
Investors and the Series C Investors.
(d) "Preferred Stock" shall mean and include shares of
the Company's (i) Series A Preferred Stock, (ii) Series B Preferred Stock, and
(iii) Series C Preferred Stock.
(e) "Shares" shall mean and include all shares of Common
Stock and Preferred Stock now owned or hereafter acquired by any Current
Stockholder or Series C Investor.
2. Agreement To Vote. The Prior Stockholders each agree to hold
all Shares now owned or hereafter acquired by them, registered in their name or
beneficially owned by it or them as of the date hereof (and any and all other
securities of the Company legally or beneficially acquired by it or them after
the date hereof) as well as all Shares as to which any such person now or
hereafter holds the right to vote (hereinafter collectively referred to as the
"Prior Stockholder Shares") subject to, and to vote the Prior Stockholder Shares
in accordance with, the provisions of this Agreement. The Series B Investors
agree to hold all Shares now owned or hereafter acquired by them registered in
their respective names or beneficially owned by them as of the date hereof (and
any and all other securities of the Company legally or beneficially acquired by
the Series B Investors after the date hereof) as well as all Shares as to which
any such person now or hereafter holds the right to vote (hereinafter
collectively referred to as the "Series B Investor Shares") subject to, and to
vote the Series B Investor Shares in accordance with, the provisions of this
Agreement. The Series C Investors agree to hold all Shares now owned or
hereafter acquired by them registered in their respective names or beneficially
owned by them as of the date hereof (and any and all other securities of the
Company legally or
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Exhibit 10.18
beneficially acquired by the Series C Investors after the date hereof) as well
as all Shares as to which any such person now or hereafter holds the right to
vote (hereinafter collectively referred to as the "Series C Investor Shares")
subject to, and to vote the Series C Investor Shares in accordance with, the
provisions of this Agreement.
3. Election of Directors. On all matters relating to the election
of directors of the Company, each of the Stockholders agree to vote all Prior
Stockholder Shares, Series B Investor Shares and Series C Investor Shares, as
the case may be, held by them (or the holders thereof shall consent pursuant to
an action by written consent of shareholders) so as to elect members of the
Company's Board of Directors as follows:
(a) five (5) individuals nominated by the Prior
Stockholders, it being understood that in such nominations, the Prior
Stockholders shall not be entitled to cumulate their votes (the "Prior
Stockholder Directors"), the initial Prior Stockholder Directors, four of whom
shall be Xxxxxxxxx Xxxxxxxx, Xxxxxxx X. Xxxxxx XX, Xxxxx Xxxxxx, and A. Xxxxx
Xxxxxxx, and the fifth seat shall be vacant (to be filled in accordance with the
provisions of this Section 3(a));
(b) one (1) individual nominated by Liberty Ventures I,
L.P. and Liberty Ventures II, L.P. (together, "Liberty"), as long as it owns, or
has the right to obtain by conversion of shares of Series B Preferred Stock
owned by it, at least fifty percent of the Common Stock which it could have
received on the initial closing date of the Series B Purchase Agreement upon
conversion of the Series B Preferred Stock that it purchased pursuant thereto;
and, thereafter, by the holders of at least a majority of the votes entitled to
be cast by the holders of the Series B Preferred Stock then outstanding (the
"Series B Director"), the initial Series B Director who shall be Xxxxxx Xxxxx;
(c) one (1) individual nominated by HLM Management
Company ("HLM"), as long as it owns, or has the right to obtain by conversion of
shares of Series C Preferred Stock owned by it, at least fifty percent of the
Common Stock which it could have received on the initial closing date of the
Series C Purchase Agreement upon conversion of the Series C Preferred Stock that
it purchased pursuant thereto; and, thereafter, by the holders of at least a
majority of the votes entitled to be cast by the holders of the Series C
Preferred Stock then outstanding (the "Series C Director"), the initial Series C
Director who shall be Xxxxxx Xxxxxx; and
(d) one (1) individual, with medical device industry
experience and/or medical/scientific knowledge of diabetes, such individual to
be mutually acceptable to both (i) Xxxxxxxxx Xxxxxxxx and (ii) the holders of a
majority of the Series B Preferred Stock then outstanding (including for the
purposes of such calculations any shares of Common Stock outstanding as a result
of the conversion of Series B Preferred Stock) (the "Industry Director").
In the event that, upon the mutual agreement of the Board of Directors, the
number of directors constituting the entire Board of Directors of the Company is
increased from eight (8) to nine (9), then, from and after such time, eight (8)
of the directors shall be elected in accordance with subsections (a), (b), (c)
and (d) of this Section 3, and the additional one (1) director shall be a
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Exhibit 10.18
person with medical and/or scientific knowledge of diabetes nominated by a
majority of the Board of Directors.
4. Vacancies and Removal.
(a) Each of the directors designated in Section 3 shall
be elected at any annual or special meeting of stockholders (or by written
consent in lieu of a meeting of stockholders) and shall serve until his or her
successor is elected and qualified or until his or her earlier resignation or
removal.
(b) A Prior Stockholder Director may be removed during
his or her term of office, with or without cause, by and only by the written
consent of the holders of a majority of the votes entitled to be cast by the
holders of the then outstanding Prior Stockholder Shares.
(c) The Series B Director may be removed during his or
her term or office, with or without cause, by and only by the affirmative vote
or written consent of the Series B Investors holding a majority of the votes
entitled to be cast by the holders of the then outstanding Series B Investor
Shares.
(d) The Series C Director may be removed during his or
her term or office, with or without cause, by and only by the affirmative vote
or written consent of the Series C Investors holding a majority of the votes
entitled to be cast by the holders of the then outstanding Series C Investor
Shares.
(e) The Industry Director may be removed during his or
her term of office, with or without cause, by and only by the affirmative vote
or written consent of both (i) Xxxxxxxxx Xxxxxxxx, and (ii) the Series B
Investors holding a majority of the votes entitled to be cast by the holders of
the then outstanding Series B Investor Shares.
(f) Any vacancy in the office of: (i) a Prior Stockholder
Director may be filled by the vote or written consent of the holders of a
majority of the votes entitled to be cast by the holders of the then outstanding
Prior Stockholder Shares; (ii) a Series B Director may, subject to the rights of
Liberty pursuant to Section 3(b) above, be filled by the vote or written consent
of the holders of a majority of the votes entitled to be cast by the holders of
the then outstanding Series B Investor Shares, (iii) a Series C Director may,
subject to the rights of HLM pursuant to Section 3(c) above, be filled by the
vote or written consent of the holders of a majority of the votes entitled to be
cast by the holders of the then outstanding Series C Investor Shares and (iv)
the Industry Director may be filled by such person as may be selected by a vote
of both (A) Xxxxxxxxx Xxxxxxxx, and (B) the Series B Investors holding a
majority of the votes entitled to be cast by the holders of the then outstanding
Series B Investor Shares; all in accordance with the Certificate of
Incorporation and By-laws of the Company and the Delaware General Corporation
Law.
5. Transfers. No Prior Stockholder shall sell, assign, transfer,
pledge, hypothecate, mortgage, encumber or dispose of all or any of its Shares
except to the Company or as expressly provided in this Agreement.
Notwithstanding the foregoing, (i) Xxxxxxxxx Xxxxxxxx may make
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Exhibit 10.18
gifts of up to an aggregate of 30,000 Shares, provided that the recipients of
such gifts consist of no more than five (5) individuals, entities or trusts
which are not stockholders of the Company as of the date of this Agreement, and
provided further that such transferee shall agree in writing with the Company
and the Investors, as a condition to such transfer, to be bound by all of the
provisions of this Agreement to the same extent as if such transferee were such
Prior Stockholder, and (ii) any Prior Stockholder may transfer all or any of its
Shares (A) by way of gift to any member of his or her family or to any trust for
the benefit of any such family member of the Prior Stockholder, provided that
such transferee shall agree in writing with the Company and the Investors, as a
condition to such transfer, to be bound by all of the provisions of this
Agreement to the same extent as if such transferee were such Prior Stockholder,
or (B) all or any of its Shares by will or the laws of descent and distribution,
in which event each such transferee shall be bound by all of the provisions of
this Agreement to the same extent as if such transferee were such Prior
Stockholder (a "Permitted Transfer"). As used herein, the word "family" shall
include any spouse, lineal ancestor or descendent, brother , sister, niece,
nephew or stepchild.
6. Right of First Refusal on Stockholder Dispositions.
(a) If at any time any Prior Stockholder desires to sell
all or any part of his or her or its Shares pursuant to a bona fide offer from a
third party (the "Proposed Transferee"), other than in (i) a transaction
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or (ii) a Permitted Transfer, such Stockholder (a "Selling Stockholder") shall
submit a written offer (the "Offer ") to sell such Shares (the "Offered Shares")
to the Initial Series B Purchasers and the Series C Investors (each a
"Rightholder" and collectively the "Rightholders"), on terms and conditions,
including price, not less favorable to the Rightholders than those on which the
Selling Stockholder proposed to sell such Offered Shares to the Proposed
Transferee. The Offer shall disclose the identity of the Proposed Transferee,
the Offered Shares proposed to be sold, the total number of Shares owned by the
Selling Stockholder, the terms and conditions, including price, of the proposed
sale, and any other material facts relating to the proposed sale. The Offer
shall further state that the Rightholders may acquire, in accordance with the
provisions of this Agreement, all or a portion of the Offered Shares for the
price and upon the other terms and conditions set forth in such Offer.
(b) Each Rightholder shall have the right to purchase
that number of Offered Shares as shall be equal to the number of Offered Shares
multiplied by a fraction, the numerator of which shall be the number of Shares
then owned by such Rightholder and the denominator of which shall be the number
of Shares then owned by all of the Rightholders. For purposes of this Section 6,
Section 7 and Section 14 hereof, all of the Common Stock which a Rightholder has
the right to acquire from the Company upon conversion, exercise or exchange of
any of the securities of the Company then owned by such Initial Purchaser shall
be deemed to be Shares then owned by such Rightholder. The amount of Shares that
each Rightholder is entitled to purchase under this Section 6 shall be referred
to as his or her or its "Pro Rata Fraction."
(c) The Rightholders shall have a right of
oversubscription such that if any Rightholder fails to accept the Offer as to
his or her or its Pro Rata Fraction, the other Rightholders shall, among them,
have the right to purchase up to the balance of the Offered Shares not so
purchased. Such right of oversubscription may be exercised by a Rightholder by
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Exhibit 10.18
accepting the Offer as to more than his or her or its Pro Rata Fraction. If, as
a result thereof, such oversubscriptions exceed the total number of Offered
Shares available in respect of such oversubscription privilege, the
oversubscribing Rightholders shall be cut back with respect to their
oversubscriptions pro rata based on the number of Shares then owned by such
Rightholder as compared to the number of Shares then owned by all Rightholders
that desire to accept such oversubscription or as they may otherwise agree among
themselves.
(d) If a Rightholder desires to purchase all or any part
of the Offered Shares, such Rightholder shall communicate in writing his or her
or its election to purchase to the Selling Stockholder, which communication
shall state the number of Offered Shares such Rightholder desires to purchase
and shall be delivered in person or mailed to the Selling Stockholder at the
address set forth in accordance with Section 17 below within thirty (30) days
after the date the Offer was made. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares (subject
to the limitations as to a Rightholder's right to purchase more than his or her
or its Pro Rata Fraction). Sale of the Offered Shares to be sold to a purchasing
Rightholder pursuant to this Section 6 shall be made at the offices of such
Rightholder on the forty-fifth (45th) day following the date the Offer was made
(or if such day is not a business day, then on the next succeeding business
day). Such sales shall be effected by the Selling Stockholder's delivery to each
purchasing Rightholder of certificates evidencing the Offered Shares to be
purchased by such purchasing Rightholder, duly endorsed for transfer to such
purchasing Rightholder, against payment to the Selling Stockholder of the
purchase price therefor by such purchasing Rightholder.
(e) If the Rightholders fail to accept the Offer with
respect to all of the Offered Shares within 30 days of receipt of such Offer,
the Selling Stockholder shall submit a written offer (the "Company Offer") to
sell the remaining Offered Shares (the "Remaining Shares") to the Company on
terms and conditions, including price, not less favorable to the Company than
those on which the Selling Stockholder proposes to sell such Remaining Shares to
the Proposed Transferee. The Company Offer shall disclose the Remaining Shares
proposed to be sold, the total number of Shares owned by the Selling
Stockholder, the terms and conditions, including price, of the proposed sale,
and any other material facts relating to the proposed sale. The Company Offer
shall further state that the Company may acquire, in accordance with the
provisions of this Agreement, all or any portion of the Remaining Shares for the
price and upon the other terms and conditions set forth therein. The decision by
the Company to purchase the Remaining Shares shall require the affirmative vote
of the Series B Director and the Series C Director and must be communicated in
writing to the Selling Stockholder within 30 days after the Company Offer was
made.
(f) If the Company does not purchase all of the Remaining
Shares, the Remaining Shares not so purchased may be sold by the Selling
Stockholder at any time within ninety (90) days after the date the Company Offer
was made, subject to the provisions of this Section 6. Any such sale shall be to
the Proposed Transferee, at not less than the price and upon other terms and
conditions, if any, not more favorable to the Proposed Transferee than those
specified in the Company Offer. Any Remaining Shares not sold within such 90-day
period shall continue to be subject to the requirements of a prior offer
pursuant to this Section 6. If
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Exhibit 10.18
Remaining Shares are sold pursuant to this Section 6 to any purchaser who is not
a party to this Agreement, the Remaining Shares so sold shall remain subject to
the restrictions imposed by this Agreement as if such purchaser is a Selling
Stockholder hereunder.
7. Rights of Co-Sale.
(a) Subject to a Selling Stockholder first complying with
the provisions of Section 6 of this Agreement, if the Rightholders do not
exercise their option to purchase all or any portion of the Shares now owned or
hereinafter acquired by a Selling Stockholder, then each Rightholder that did
not elect to purchase Shares pursuant to Section 6 above (the "Co-Sale Holders")
shall have the right, exercisable upon written notice to the Selling Stockholder
within fifteen (15) days after receipt by the Co-Sale Holders of the Offer
delivered pursuant to Section 6 hereof (hereinafter referred to as the "Transfer
Notice"), to participate in such transfer of Shares on the same terms and
conditions as stated in the Transfer Notice. Such notice shall indicate the
number of Shares that the Co-Sale Holders wish to sell under their right to
participate in such sale. To the extent the Co-Sale Holders exercise such right
of co-sale in accordance with the terms and conditions set forth below, the
number of Shares that such Selling Stockholder may sell in the transaction shall
be correspondingly reduced in accordance with paragraph (b) below.
(b) Each Co-Sale Holder that exercises its right of
co-sale pursuant to this Section 7, may sell all or any part of that number of
Shares equal to the product obtained by multiplying (i) the aggregate number of
Shares covered by the Transfer Notice, less any such shares sold to the
Rightholders pursuant to Section 6 hereof, by (ii) a fraction, the numerator of
which is the number of Shares owned by such participating Co-Sale Holder upon
the date of the Transfer Notice and the denominator of which is the total number
of Shares owned at the date of the Transfer Notice, by all Co-Sale Holders that
exercise their right of co-sale in accordance with this Section 7 and the
Selling Stockholder.
(c) If any Co-Sale Holder elects to participate in the
transfer of Shares pursuant to this Section 7, then such Co-Sale Holder shall
effect its participation in the transfer by executing and delivering all
agreements, instruments and other documents reasonably required of a transferor
in such transfer and promptly delivering to the prospective purchaser one or
more certificates, properly endorsed for transfer, which represent:
(i) the type and number of Shares which the
Co-Sale Holder elects to sell; or
(ii) that number of shares of Series B or Series
C Preferred Stock held by the Co-Sale Holders which is at such time convertible
into the number of shares of Common Stock which the Co-Sale Holders elect to
sell; provided, however, that if the prospective purchaser objects to the
delivery of Series B or Series C Preferred Stock in lieu of Common Stock or
Series A Preferred Stock, the Co-Sale Holders shall convert such Series B or
Series C Preferred Stock into Common Stock and deliver Common Stock as provided
in Section 7(c)(i) above. The Company agrees to make any such conversion
concurrent with the actual transfer of such Shares to the purchaser.
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Exhibit 10.18
(d) The stock certificate or certificates that the
Co-Sale Holders deliver to the prospective purchaser pursuant to Section 7(c)
hereof shall be transferred to such prospective purchaser in consummation of the
sale of the Shares pursuant to the terms and conditions specified in the
Transfer Notice, and the Co-Sale Holders shall concurrently therewith receive
that portion of the sale proceeds to which the Co-Sale Holders are entitled by
reason of its participation in such sale.
(e) To the extent that any prospective purchaser(s)
prohibit(s) such assignment or otherwise refuses to purchase shares or other
securities from the Co-Sale Holders exercising their rights of co-sale
hereunder, the Selling Stockholders shall not sell to such prospective purchaser
or purchasers any Shares unless and until, simultaneously with such sale, such
Selling Stockholder shall purchase such shares or other securities from the
Co-Sale Holders on the same terms and conditions specified in the Transfer
Notice.
(f) The exercise or non-exercise of the rights of the
Co-Sale Holders hereunder to participate in one or more transfers of Shares made
by such Co-Sale Holder shall not adversely affect their rights to participate in
subsequent transfers of Shares subject to Section 7(a) hereof.
(g) If the Co-Sale Holders elect not to participate in
the sale of the Shares subject to the Transfer Notice, the Selling Stockholders
may, not later than ninety (90) days following delivery to the Company of the
Transfer Notice, enter into an agreement providing for the closing of the
transfer of the Shares covered by the Transfer Notice within thirty (30) days of
such agreement on terms and conditions not more materially favorable to the
Selling Stockholder than those described in the Transfer Notice.
(h) Any proposed transfer on terms and conditions
materially more favorable than those described in the Transfer Notice, as well
as any subsequent proposed transfer of any Shares by a Selling Stockholder,
shall again be subject to the co-sale rights of the Rightholders and shall
require compliance by a Selling Stockholder with procedures described in this
Section 7.
(i) Prior to the sale of any Shares to be sold by such
Co-Sale Holder or a participating Selling Stockholder pursuant to this Section
7, the Co-Sale Holder and Selling Stockholder shall deliver to the Company (in a
form reasonably acceptable to the Company) a written agreement of the proposed
buyer agreeing to become a party to this Agreement as a Prior Stockholder.
8. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the Company's completion
of an underwritten public offering on a firm commitment basis pursuant to an
effective registration statement filed pursuant to the Securities Act (other
than on Form S-4 or S-8 or any successor form thereto) covering the offer and
sale of Common Stock for the account of the Company, in which (i) the aggregate
price paid by the public for the purchase of Common Stock from the Company and
all selling stockholders equals or exceeds $40,000,000 (calculated before
deducting underwriters commissions and other offering expenses), and (ii) the
public offering price per share of Common Stock (calculated
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Exhibit 10.18
before deducting underwriters discounts and commissions) equals or exceeds
$20.00, based on the Company's capital structure as of the date hereof, as
subsequently adjusted to reflect the effect of any subdivision, combination, or
reverse stock split.
9. Transfer Restrictions. None of the Stockholders may sell,
transfer, pledge, or hypothecate any Shares except in accordance with the terms
and conditions of this Agreement applicable to them and unless the party to whom
such Shares are sold, transferred, pledged, or hypothecated shall have first
agreed in writing to be subject to the terms and conditions of this Agreement.
10. Specific Enforcement. Each Stockholder expressly agrees that
the Investors and the Company will be irreparably damaged if this Agreement is
not specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by any Stockholder, the Investors
and the Company shall, in addition to all other remedies, each be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with the provisions hereof.
11. Restrictive Legend. All certificates representing the Shares
issued by the Company shall bear substantially the following legend:
THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF
A CERTAIN STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 22,
2001, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND
CERTAIN HOLDERS OF ITS OUTSTANDING CAPITAL STOCK. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY.
12. Governing Law. The Company is a Delaware corporation and all
matters pertaining to its corporate governance and corporate finance shall be
governed by the Delaware General Corporation Law. Subject to the preceding
sentence, generally this Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
13. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
14. Amendments. Neither this Agreement nor any provision hereof
may be waived, modified, amended or terminated except by a written agreement
signed by the parties hereto; provided, however, that together (i) the Initial
Series B Purchasers holding at least sixty (60%) of the votes entitled to be
cast by the holders of the Series B Preferred Stock owned by all such
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Exhibit 10.18
Initial Series B Purchasers, solely with respect to such shares of Series B
Preferred Stock, (ii) the Initial Purchasers (as defined in the Series C
Purchase Agreement) owning at least sixty (60%) of the votes entitled to be cast
by the holders of the Series C Preferred Stock owned by all such Initial
Purchasers, solely with respect to such shares of Series C Preferred Stock,
(iii) the holders of a majority of the votes entitled to be cast by the holders
of the outstanding Preferred Stock, solely with respect to such shares of
Preferred Stock, and (iv) the Company (to the extent that any of the rights or
obligations of the Company pursuant to the terms hereof may be impacted), may
effect any such waiver, modification, amendment or termination on behalf of all
of the Stockholders. Notwithstanding the foregoing, any amendment, modification
or termination to this Agreement that reduces the rights of the Prior
Stockholders or Xxxxxxxxx Xxxxxxxx to appoint or remove the Prior Stockholder
Directors or Industry Director, as the case may be and as provided for in
Section 3 or Section 4 hereof, must be approved by the Prior Stockholders
holding at least a majority of the votes entitled to be cast by the holders of
the shares of Series A Preferred Stock and Common Stock owned by all such Prior
Stockholders, solely with respect to such Series A Preferred Stock or Common
Stock, or Xxxxxxxxx Xxxxxxxx, as the case may be. To the extent any term or
other provision of any other indenture, agreement or instrument by which any
party hereto is bound conflicts with this Agreement, this Agreement shall have
precedence over such conflicting term or provision.
15. Successors, Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Stockholders and their respective
successors and assigns.
16. Integration. This Agreement constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and communications between the
parties with respect to the subject matter hereof including, without limitation,
the Prior Voting Agreement and the Existing Stockholders Agreement.
17. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by certified or
registered mail, return receipt requested, postage prepaid, to such address as
is set forth below or as may hereafter be given to the other parties pursuant to
this paragraph.
18. Termination of Prior Voting Agreement. The applicable parties
hereto hereby agree that, effective January 22, 2001, the Prior Voting Agreement
was cancelled and terminated by the terms and provisions of this Agreement and
such agreement shall have no further force or effect.
19. Conflicts with Prior Stockholders Agreement. To the extent
that any provisions of this Agreement conflict with the provisions of that
certain Stockholders Agreement dated December 1, 1996 by and among the Company,
Xxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxx University and Xxxxxxx Xxxxxx, D.O., as the
same may be amended from time to time, the provisions of this Agreement shall
prevail and control.
20. Changes in Common Stock or Preferred Stock. If, and as often
as, there is any change in the Common Stock or the Preferred Stock by way of a
stock split, stock dividend,
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Exhibit 10.18
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
obligations pursuant hereto, and the calculations made hereby, shall continue
with respect to the Common Stock or the Preferred Stock as so changed.
21. Counterparts. This Agreement 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.
-11-
Exhibit 10.18
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Stockholders Agreement as of the date and year set forth above.
ANIMAS CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: President/CEO
SERIES B INVESTORS:
LIBERTY VENTURES I, L.P.
By: Liberty Ventures, Inc.
Corporate General Partner
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
President
LIBERTY VENTURES II, L.P.
By: Liberty Venture Partners II, LLC
Its General Partner
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
Managing Director
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
-12-
Exhibit 10.18
[Signatures continue on following page]
-13-
Exhibit 10.18
HLM/UH FUND, L.P.
By: HLM/UH Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
(Officer)
HLM OPPORTUNITIES FUND, L.P.
By: HLM Opportunities Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
(Officer)
HLM/CB FUND II, L.P.
By: HLM/CB Associates II, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
(Officer)
[Signatures continue on following page]
-14-
Exhibit 10.18
SERIES C INVESTORS:
LIBERTY VENTURES I, L.P.
By: Liberty Ventures, Inc.
Corporate General Partner
By:_________________________________
Xxxxxx Xxxxx
President
LIBERTY VENTURES II, L.P.
By: Liberty Venture Partners II, LLC
Its General Partner
By:___________________________
Xxxxxx Xxxxx
Managing Director
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
HLM/UH FUND, L.P.
By: HLM/UH Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: ________________________________
(Officer)
[Signatures continue on following page]
-15-
Exhibit 10.18
HLM OPPORTUNITIES FUND, L.P.
By: HLM Opportunities Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By:_________________________________
(Officer)
HLM/CB FUND II, L.P.
By: HLM/CB Associates II, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By:_________________________________
(Officer)
U.S. BANCORP XXXXX XXXXXXX ECM
FUND II, LLC
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Administrative Member
[Signatures continue on following page]
-16-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
XXXXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxxxxxx
------------------------------------
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
------------------------------------
ANVERS L.P.
By: FSIP , LLC
------------------------------------
Its General Partner
By: /s/ X. Xxxxxxxx
------------------------------------
Name: X. Xxxxxxxx
Title: Sr. Managing Director
ANVERS II L.P.
By: FSIP , LLC
------------------------------------
Its General Partner
By: /s/ X. Xxxxxxxx
------------------------------------
Name: X. Xxxxxxxx
Title: Sr. Managing Director
-17-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx Trust
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
------------------------------------
Attorney-In-Fact for
Xxxxxxx X. Xxxxxx, V
ANVERS L.P.
By:_________________________________, LLC
Its General Partner
By: ________________________________
Name________________________
Title: __________________
ANVERS II L.P.
By:________________________________, LLC
Its General Partner
By: ________________________________
Name________________________
Title: __________________
-18-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, Trustee
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx Trust
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
------------------------------------
Attorney-In-Fact for
Xxxxx X. Xxxxxx
ANVERS L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
ANVERS II L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
-19-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
TTE for Xxxxxxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
____________________________________
XXXXXXX XXXXXX, an individual
____________________________________
ANVERS L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
ANVERS II L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
-20-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
___________________________________
XXXXXXX XXXXXX, an individual
____________________________________
ANVERS L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_____________________
Title: __________________
ANVERS II L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
-21-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
____________________________________
XXXXXX XXXXXXXX, an individual
____________________________________
XXXXXXX XXXXXX, an individual
Xxxxx Xxxxxxxx
____________________________________
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
ANVERS L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
ANVERS II L.P.
By:___________________________, LLC
Its General Partner
By: ________________________________
Name_______________________
Title: __________________
-22-
Exhibit 10.18
XXXXXXXXX XXXXXXXX, an individual
____________________________________
XXXXXX XXXXXXXX, an individual
____________________________________
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx, Trustee
-------------------------------
Deed of Trust of Xxxxxxx X. Xxxxxx XX,
Settlor, dated May 19, 1996 Xxxxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxx, Trustees
EIN: 00-0000000
____________________________________
ANVERS L.P.
By:___________________________, LLC
Its General Partner
By: __________________________________
Name_______________________
Title: __________________
/s/ Xxxxxxx Xxxxxx, Trustee
-------------------------------
Deed of Trust of Xxxxxxx X. Xxxxxx XX,
Settlor, dated July 27, 1998 Xxxxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxx, Trustees
EIN: 00-0000000
ANVERS II L.P.
By:___________________________, LLC
Its General Partner
By: __________________________________
Name_______________________
Title: __________________
-23-
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this ___ day of ________________, 2001.
PRIOR STOCKHOLDER
By: /s/ Xxx X. Xxxxx
------------------------------
Name:
Title:
A-1
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this 16th day of November, 2001.
PRIOR STOCKHOLDER
Tennyson Fund II, LLLP
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Partner
A-2
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this __ day of ________, 2001.
PRIOR STOCKHOLDER
By: /s/
--------------------------------
Name: Xxxxx/Xxxxxxxx Partnership
Title:
A-3
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this __ day of ____________, 2001.
PRIOR STOCKHOLDER
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title:
A-4
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this 30th day of October, 2001.
PRIOR STOCKHOLDER
By: /s/ X.X. Xxxxxxx
------------------------------
Name: X.X. Xxxxxxx
Title:
A-5
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this 8 day of November, 2001.
PRIOR STOCKHOLDER
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title:
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title:
A-6
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October 11, 2001, in the form of
Exhibit A hereto, as of this 14 day of November, 2001.
PRIOR STOCKHOLDER
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title:
A-7
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October 11, 2001, in the form of
Exhibit A hereto, as of this 14 day of November, 2001.
PRIOR STOCKHOLDER
By: /s/ Grahame Xxxxx Xxxxxx
------------------------------
Name: Grahame Xxxxx Xxxxxx
Title:
A-8
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this 6 day of November, 2001.
PRIOR STOCKHOLDER
By: /s/ Xxxxxx X.X. Xx
------------------------------
Name: Xxxxxx X.X. Xx
Title: Registered Stockholder
A-9
Exhibit 10.18
EXHIBIT A
Prior Stockholder Signature Page
IN WITNESS WHEREOF, the undersigned has duly executed the Amended and
Restated Stockholders Agreement dated as of October __, 2001, in the form of
Exhibit A hereto, as of this __ day of _________, 2001.
PRIOR STOCKHOLDER
BankAmerica Investment Corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
A-10
