Exhibit 10.23
LIGHT SCIENCES ONCOLOGY, INC.
SECOND JOINDER AGREEMENT
This Second Joinder Agreement (the "AGREEMENT"), effective as of December
12, 2005 (the "EFFECTIVE DATE"), is entered into by and among Light Sciences
Oncology, Inc. a Washington corporation (the "COMPANY"), Novo A/S ("NOVO"), NSV
Partners Institutional, LP and NSV Partners IX (LSO), LP (collectively, "NSV"),
Xxxxxxx Xxx ("XXX," and together with Novo and NSV, the "NEW PURCHASERS"), the
holders of shares of the Company's Series A Preferred Stock (the "SERIES A
PREFERRED") identified on Exhibit A hereto (the "INVESTORS"), and the other
parties identified on Exhibit B hereto (the "OTHER PARTIES").
WHEREAS, the Investors collectively hold 9,384,989 shares of Series A
Preferred purchased pursuant to that certain Series A Preferred Stock Purchase
Agreement dated as of October 6, 2005, as amended (the "PURCHASE AGREEMENT");
WHEREAS, the Investors are also parties to (a) that certain Investors
Rights Agreement by and among the Company, the Investors and certain of the
Other Parties dated October 6, 2005 (the "RIGHTS AGREEMENT"), (b) that certain
Voting Agreement by and among the Company, the Investors and certain of the
Other Parties dated October 6, 2005, as amended (the "VOTING AGREEMENT"), and
(c) that certain Right of First Refusal and Co-sale Agreement by and among the
Company, Light Sciences Corporation, the Investors and certain of the Other
Parties dated October 6, 2005 (the "ROFR AGREEMENT" and together with the Rights
Agreement and the Voting Agreement, the "ANCILLARY AGREEMENTS");
WHEREAS, the Company intends to issue and sell 3.205 million shares of
Series A Preferred to the New Purchasers and 800,000 shares of Series A
Preferred to Essex Woodland Health Ventures Fund VI, L.P. ("ESSEX") pursuant to
the Purchase Agreement (the "CLOSING"); and
WHEREAS, in connection with the Closing, and as a condition to the Closing
in accordance with the Purchase Agreement, the Company, the Investors and the
Other Parties desire to permit the New Purchasers to become parties to the
Rights Agreement and the ROFR Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows.
1. Upon the purchase of shares of Series A Preferred by the New Purchasers
as set forth in the Purchase Agreement, and the execution of signature pages to
the Purchase Agreement and the Ancillary Agreements by the New Purchasers, each
of the New Purchasers shall become:
(a) an "Investor" under the Rights Agreement; and
(b) an "Investor" under the ROFR Agreement;
as if such New Purchaser was an original signatory to each agreement as an
"Investor."
2. The undersigned Investors, who constitute at least 50% of the
outstanding shares of Series A Preferred, hereby consent to the issuance of
shares of Series A Preferred to the New Purchasers and Essex pursuant to the
Purchase Agreement.
3. Each New Investor agrees to be bound by the terms and obligations of the
Rights Agreement and the ROFR Agreement, including without limitation Section
3.11 of the Rights Agreement which provides for a "market stand off" period of
at least 180 days in the event of the Company's initial public offering, as if
such New Investor was an original signatory to each as an "Investor," as such
agreements may be amended from time to time. The parties hereto acknowledge and
agree that Essex is already an "Investor" under the Rights Agreement and the
ROFR Agreement, and that the additional shares of Series A Preferred purchased
by Essex in the Closing shall be added to the shares of Series A Preferred owned
by Essex prior to the Closing for purposes of Essex's rights and obligations
under those agreements.
4. 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.
5. This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington and the laws of the United States applicable
therein (in each case without giving effect to any choice or conflict of laws
provision or rule that would cause the application of the laws of any other
jurisdiction).
6. In all respects not inconsistent with the terms and provisions of this
Agreement, the Ancillary Agreements are hereby ratified, adopted, approved and
confirmed.
7. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement, and of the Rights Agreement and the ROFR
Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
* * *
-2-
IN WITNESS WHEREOF, the parties hereto have executed this Second Joinder
Agreement on the date first written above.
LIGHT SCIENCES ONCOLOGY, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Its: Vice President
LIGHT SCIENCES CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Its: CEO
ESSEX WOODLANDS HEALTH VENTURES FUND
VI, L.P.
By: Essex Woodlands Health Ventures VI,
L.P.
Its: General Partner
By: Essex Woodlands Health Ventures VI,
L.L.C.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xx. Xxxx Xxxxxxx, Managing Director
XXXXX STREET V, L.P.
By: Xxxxx Street Partners, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Ph.D., Partner
CHINA DEVELOPMENT INDUSTRIAL BANK, INC.
By:
------------------------------------
Its:
-----------------------------------
----------------------------------------
XXXXXX XXXXXXXXX
----------------------------------------
XXXX-XXXXX XXX
/s/ Xxxxx X. Xxxxxx
----------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx Xxxx
----------------------------------------
XXXXX XXXX
XXXXXXX & XXXXXXX
DEVELOPMENT CORPORATION
----------------------------------------
Xxxxx Xxxxx, Vice President
SCANDINAVIAN LIFE SCIENCE VENTURE TWO KB
By: /s/ Xxxxxx Xxxx Xxxxxxxx
------------------------------------
Its: Senior Partner
MEDICON VALLEY CAPITAL TWO KB
By: /s/ Xxxxxx Xxxx Xxxxxxxx
-----------------------------------
Its: Senior Partner
MEDICON VALLEY CAPITAL II K/S
By: /s/ Xxxxxx Xxxx Xxxxxxxx
------------------------------------
Its: Senior Partner
NOVO A/S
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Chief Executive Officer
NSV PARTNERS INSTITUTIONAL, LP
By: /s/ New Science Ventures
------------------------------------
Its: General Partner
NSV PARTNERS IX (LSO), LP
By: /s/ New Science Ventures
------------------------------------
Its: General Partner
/s/ Xxxxxxx Xxx
----------------------------------------
XXXXXXX XXX
EXHIBIT A
INVESTORS
Essex Woodlands Health Ventures Fund VI, L.P.
Xxxxx X. Xxxxxx
Xxxxx Street V, L.P.
China Development Industrial Bank, Inc.
Xxxxxx Xxxxxxxxx
Xxxx-Xxxxx Xxx
Xxxxxxx & Xxxxxxx Development Corporation
Scandinavian Life Science Venture Two KB
Medicon Valley Capital Two KB
Medicon Valley Capital II K/S
EXHIBIT B
OTHER PARTIES
Light Sciences Corporation
Xxxxx Xxxxxx
Xxxxx Xxxx
