EXHIBIT 10.17(D)
EXECUTION
FOURTH AMENDMENT TO
INVESTOR RIGHTS AGREEMENT
THIS FOURTH AMENDMENT TO INVESTOR RIGHTS AGREEMENT (the "Fourth
Amendment") is entered into this 21st day of January, 2003, by and among Animas
Corporation, a Delaware corporation (the "Company") and certain individuals and
entities who are identified as "Investors" in an Investor Rights Agreement,
dated as of January 28, 2000, as previously amended (the "Original Agreement"),
which individuals and entities are identified on the signature pages to this
Fourth Amendment (collectively, for purposes of this Amendment, the "Series A
Investors").
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;
WHEREAS, the Company previously sold and issued 1,500,000 shares of its
Series B Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred Stock") to certain investors (the "Series B Investors"), pursuant to a
Series B Convertible Preferred Stock Purchase Agreement, dated January 22,2001
(the "Series B Purchase Agreement");
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");
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;
WHEREAS, subsequently, the Company sold and issued 200,000 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 new investors (the "Series C
Investors"), pursuant to a Series C Convertible Preferred Stock Purchase
Agreement, dated October 11,2001 (as amended, the "Series C Purchase
Agreement");
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 entered into by and among the Company, the Series
B Investors and the Series C Investors (as amended, the "Amended and Restated
Registration Rights Agreement");
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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;
WHEREAS, the Company and the Series A Investors further amended the
Original Agreement, as amended by the Second Amendment, by entering into a Third
Amendment to Investor Rights Agreement dated as of May 13, 2002 (the "Third
Amendment");
WHEREAS, the Company now desires to sell and issue up to 1,217,692
additional shares of Series C Preferred Stock, including pursuant to warrants to
purchase shares of Series C Preferred Stock (the "Warrants"), pursuant to a Unit
Purchase Agreement, dated January 21, 2003, among the Company and the purchasers
thereunder (the "Unit Purchase Agreement"); and
WHEREAS, the Company previously obtained a line of credit from Silicon
Valley Bank and, in connection therewith, committed to provide certain
registration rights to SVB with respect to the Common Stock received upon
conversion of the Series C Preferred Stock which may be obtained by SVB upon
exercise of the SVB Warrants (the "SVB Common Stock");
WHEREAS, the Company and SVB desire to amend the Registration Rights
Agreement to join SVB as a party thereto and to include the SVB Common Stock as
"Registrable Securities" within the meaning of the Registration Rights
Agreement, by entering into a Second Amendment to Registration Rights Agreement
dated January 21, 2003;
WHEREAS, in connection with and in consideration for the execution and
delivery of the Unit Purchase Agreement, the Company seeks to extend certain
registration and other rights to the purchasers of Series C Preferred Stock and
Warrants pursuant to the Unit Purchase Agreement (the "Unit Purchasers"), by
entering into a Second Amendment to Registration Rights Agreement dated January
21, 2003;
WHEREAS, the Company and the Series A Investors desire to amend the
Original Agreement, as amended by the Second Amendment and the Third Amendment,
as set forth herein, to enable the Unit Purchasers and SVB 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;
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 the Second
Amendment, provide that the Original Agreement, as amended by the Second
Amendment and the Third 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 Registration Rights Agreement) holding at least 60% of
the votes entitled to be cast by the holders of Series B
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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 Fourth
Amendment, collectively, the "Requisite Shares");
NOW THEREFORE, in consideration of the premises of the mutual promises,
covenants and agreement contained in this Fourth 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.
2. Amendments to Investor Rights Agreement.
(a) Additional Defined Terms. The following additional
defined terms are hereby added to the Original Agreement:
(i) "Unit Purchase Agreement" shall mean that
certain Unit Purchase Agreement dated January 21,2003 (together with all
joinders thereto) pursuant to which certain holders of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, and Common Stock may
acquire Units;
(ii) "SVB Warrants" shall mean those certain
warrants to purchase 5,000 shares of Series C Preferred Stock issued to Silicon
Valley Bank on November 4, 2002;and
(iii) "Units" shall mean those certain Units
purchased pursuant to the Unit Purchase Agreement and consisting of one share of
Series C Preferred Stock and a Warrant.
(b) Amendments to Existing Definitions.
(i) The term "Series C Investor" shall be
amended in its entirety and, from and after the date hereof, 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 the
Unit Purchase Agreement, and (iii) Silicon Valley Bank; and
(ii) The term "Amended and Restated Registration
Rights Agreement" shall be amended in its entirety and, from and after the date
hereof, shall mean the
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Amended and Restated Registration Rights Agreement, as amended by both the First
Amendment to the Amended and Restated Registration Rights Agreement, dated May
13, 2002, and the Second Amendment to the Amended and Restated Registration
Rights Agreement, dated January 21, 2003, in each case among the Company and the
persons identified therein.
2. 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.
3. Governing Law. This Fourth 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.
4. Counterparts; Facsimile Execution. This Fourth 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.
5. Effective Time. This Fourth 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 the
signatures of the holders of the Requisite Shares.
IN WITNESS WHEREOF, the parties hereto have executed, or caused this
Fourth 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Asst. Sect / V. P Finance
[SERIES A INVESTOR SIGNATURE PAGES FOLLOW]
Forth Amendment Investor Rights
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Stockholder
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Title of Authorized Person
Address of Series A Investor:
The ▇▇▇▇▇▇ Building
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ANIMAS/2003 offering: Second Closing
Investor Rights Amendment
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Anvers LP
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Print Name of Series A Investor
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Signature of Authorized Person
Sr Mgr FSIP LLC as GP
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Title of Authorized Person
Address of Series A Investor:
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Anvers II LP
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Print Name of Series A Investor
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Signature of Authorized Person
Sr. Mgr FSIP LLC as GP
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Title of Authorized Person
Address of Series A Investor:
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CITY NATIONAL BANK TTEE
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Print Name of Series A Investor
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Signature of Authorized Person
Trust Officer
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Title of Authorized Person
Address of Series A Investor:
City National Investment
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Title of Authorized Person
Address of Series A Investor:
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Signature of Authorized Person
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Title of Authorized Person
Address of Series A Investor:
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Signature of Authorized Person
Stockholder
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Title of Authorized Person
Address of Series A Investor:
The ▇▇▇▇▇▇ Building
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Signature of Authorized Person
TRUSTEE
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Title of Authorized Person
Address of Series A Investor:
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Print Name of Series A Investor
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Signature of Authorized Person
TRUSTEE
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Title of Authorized Person
Address of Series A Investor:
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Print Name of Series A Investor
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Signature of Authorized Person
TRUSTEE
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Title of Authorized Person
Address of Series A Investor:
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Print Name of Series A Investor
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Signature of Authorized Person
TRUSTEE
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Title of Authorized Person
Address of Series A Investor.
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Signature of Authorized Person
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Title of Authorized Person
Address of Series A Investor:
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Print Name of Series A Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Signature of Authorized Person
Trustee
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Title of Authorized Person
Address of Series A Investor:
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Signature of Authorized Person
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Title of Authorized Person
Address of Series A Investor:
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