Exhibit 10.17(E)
FIFTH AMENDMENT TO
INVESTOR RIGHTS AGREEMENT
THIS FIFTH AMENDMENT TO INVESTOR RIGHTS AGREEMENT (the "FIFTH
AMENDMENT") is entered into this 18th day of November, 2003, by and among Animas
Corporation, a Delaware corporation (the "COMPANY"), and certain individuals and
entities listed on the signature page hereto (identified as "INVESTORS" in an
Investor Rights Agreement (the "SERIES A INVESTORS"), dated as of January 28,
2000, as previously amended (the "ORIGINAL AGREEMENT").
WHEREAS, the Series A Investors hold shares of the Company's
Series A Preferred Stock, $.01 par value per share (the "SERIES A PREFERRED
STOCK"), and possess certain registration and other rights with respect to such
Series A Preferred Stock under the Original Agreement; and
WHEREAS, pursuant to a Series B Convertible Preferred Stock
Purchase Agreement, dated January 22, 2001 (the "SERIES B PURCHASE AGREEMENT"),
the Company previously sold and issued shares of its Series B Convertible
Preferred Stock, $.01 par value per share (the "SERIES B PREFERRED STOCK") to
certain investors named therein (the "SERIES B INVESTORS"); and
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"); and
WHEREAS, pursuant to a First Amendment to Investor Rights
Agreement, dated January 22, 2001 (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; and
WHEREAS, pursuant to a Series C Convertible Preferred Stock
Purchase Agreement, dated October 11, 2001 (as amended, the "SERIES C PURCHASE
AGREEMENT"), the Company sold and issued shares of its Series C Convertible
Preferred Stock, $.01 par value per share (the "SERIES C PREFERRED STOCK"),
including the Additional Series C Preferred Stock (as defined in the Third
Amendment to Investor Rights Agreement dated as of May 13, 2002 (the "THIRD
AMENDMENT")) to certain investors named therein (the "SERIES C INVESTORS"),; and
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 by and among the Company, the Series
B Investors and the Series C Investors (as amended, the "AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT"); and
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WHEREAS, the Company and the Series A Investors amended the
Original Agreement and terminated the First Amendment by entering into a Second
Amendment to Investor Rights Agreement dated as of October 11, 2001 (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; and
WHEREAS, the Company and the Series A Investors further
amended the Original Agreement, as amended by the Second Amendment, by entering
into the Third Amendment; and
WHEREAS, the Company and the Series A Investors further
amended the Original Agreement by entering into a Fourth Amendment to Investor
Rights Agreement dated as of January 21, 2003 (the "FOURTH AMENDMENT") to enable
the purchasers of Units, each Unit consisting of one (1) share of Series C
Preferred Stock and a warrant to purchase nine-tenths (0.9) of a share of Series
C Preferred Stock (the "UNITS"), 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; and
WHEREAS, concurrently with the execution of this Fifth
Amendment, JJDC is acquiring from the Company Units pursuant to a Unit Purchase
Agreement (the "UNIT PURCHASE AGREEMENT"); and
WHEREAS, the sale to JJDC has been deemed to be a Strategic
Investor Offering (as defined in the Stockholders Consent) by the Board of
Directors of the Company in accordance with the terms of the Unanimous Consent
of Stockholders of the Company dated as of January 21, 2003 (the "STOCKHOLDERS
CONSENT"); and
WHEREAS, in the Stockholders Consent, the Series A Investors,
holders of the Company's Series B Preferred Stock and each of the holders of the
Company's Series C Preferred Stock as of the date of the Stockholders Consent
(collectively, the "CONSENTING HOLDERS"), empowered the Chairman, President and
Chief Executive Officer, Chief Financial Officer, the Senior Vice President and
any Vice President of the Company (each an "AUTHORIZED OFFICER," and
collectively, the "AUTHORIZED OFFICERS") as their attorney-in fact, in their
name and on their behalf, to execute and deliver from time to time all documents
which are reasonably necessary to effectuate amendments to the Investor Rights
Agreement so that the Common Stock issued or otherwise issuable as a result of
any Strategic Investor Offering could be afforded the same registration rights
as currently set forth in the Amended and Restated Registration Rights Agreement
(the "POWER OF ATTORNEY"); 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 Fifth Amendment, provide that the Original Agreement, as amended by the
Second Amendment, the Third Amendment and the Fourth Amendment, 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
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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 Fifth Amendment, collectively, the "REQUISITE SHARES");
and
WHEREAS, the Authorized Officer executing this Fifth Amendment
on behalf of the Consenting Holders pursuant to the Power of Attorney represents
the Requisite Shares.
NOW THEREFORE, in consideration of the premises of the mutual
promises, covenants and agreement contained in this Fifth Amendment, 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 Original
Agreement, as previously amended.
2. Amendments to Investor Rights Agreement. The
following defined terms are hereby amended and restated in their entirety as
follows:
(1) "Amended and Restated Registration
Rights Agreement" shall mean the Amended and Restated Registration Rights
Agreement, 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, and
the Third Amendment to the Amended and Restated Registration Rights Agreement,
dated as of the date of this Fifth Amendment, in each case among the Company and
the persons identified therein.
(2) "Series C Investor" shall mean,
collectively, (i) the purchasers of Series C Preferred Stock pursuant to the
Series C Purchase Agreement, including the Additional Series C Investors (as
defined in the Third Amendment), (ii) the purchasers of Units pursuant to a Unit
Purchase Agreement, and (iii) Silicon Valley Bank.
(3) "Unit Purchase Agreement" shall
mean (A) that certain Unit Purchase Agreement dated January 21, 2003 (together
with all joinders thereto, including but not limited to that Unit Purchase
Agreement dated March 21, 2003 between the Company and InvestCare Partners
Limited Partnership) pursuant to which certain holders of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Common Stock and new
investors acquired Units and (B) any Unit Purchase Agreement used in a Strategic
Investor Offering (as defined in the Stockholders Consent) whereby a strategic
investor acquires Units in the Company.
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(4) "Units" shall mean those certain
Units purchased pursuant to a Unit Purchase Agreement and consisting of one
share of Series C Preferred Stock and a Warrant.
3. Further Effect of Original Agreement. Except as
otherwise amended herein, all other provisions of the Original Agreement, as
previously amended, shall remain in full force and effect.
4. Governing Law. This Fifth 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 Fifth
Amendment may be executed in any number of counterparts, including by facsimile
signature, shall be an original and all of which, when taken together, shall be
deemed one and the same agreement.
6. Effective Time. This Fifth Amendment shall become
effective and legally binding upon the Company and the other parties hereto, and
shall be deemed to effectively amend the Original Agreement, as previously
amended, when one or more counterparts hereof, individually or taken together,
shall bear signatures representing the Requisite Shares.
REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.
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Exhibit 10.17(E)
IN WITNESS WHEREOF, the parties hereto have executed, or caused this
Fifth 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/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------------
Name:
Title:
/s/ Xxxxxxxxx X. Xxxxxxxx
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XXXXXXXXX XXXXXXXX, PRESIDENT
AND CHIEF EXECUTIVE OFFICER OF
ANIMAS CORPORATION, SIGNING
PURSUANT TO THE POWER OF
ATTORNEY GRANTED BY:
XXXXXXXXX XXXXXXXX XXXXX XXXXX
XXXXXX XXXXXXXX XXXX XXXXX
XXXXX LARKMANN TRUST CITY NATIONAL BANK TTEE FBO
XXXXX LARKMANN TRUST DWT/XXXXXXX
XXXXXXXXX LARKMANN TRUST XXXXXX X. XXXXXX, XX
XXXXX LARKMANN TRUST XXXXXX X. X. XX
XXXX XXXXXXXX TRUST XXXXXXX X. XXXXXXXX
XXXXXXX X. XXXXXX, XX XXXX X. XXXXXXXX
HLM/UH FUND L.P. XXXX XXX XXXXXXXX
HLM OPPORTUNITIES FUND, L.P. XXXXXXX XXXXX
HLM/CB FUND II, X.X. XXXX X. XXXXXXXX
LIBERTY ADVISORS, INC. XXXX X. XXXXX/XXXXX X. XXXXX
LIBERTY VENTURES I, X.X. XXXXXXX XXXXXX HYBRID PARTNERS II, L.P.
LIBERTY VENTURES II, L.P. XXXXX XXXXX
TDH CAPITAL PARTNERS XXXXXXX XXXXXX
ANVERS X.X. XX ASSOCIATES
ANVERS II L.P.
Execution Page to Fifth Amendment to Investor Rights Agreement
