Exhibit 10.16(C)
THIRD AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "THIRD AMENDMENT"), is dated November 18, 2003, by and among
Animas Corporation, a Delaware corporation (the "COMPANY"), Xxxxxxx and Xxxxxxx
Development Corporation ("JJDC"), and those Existing Holders (as defined below)
listed on the signature page hereto.
WHEREAS, the Company and certain holders of (a) the Company's Series B
Convertible Preferred Stock, $0.01 par value per share (the "SERIES B PREFERRED
STOCK") and (b) the Company's Series C Convertible Preferred Stock, $0.01 par
value per share (the "SERIES C PREFERRED STOCK"), are parties to an Amended and
Restated Registration Rights Agreement dated as of October 11, 2001, as amended
by that certain First Amendment to Amended and Restated Registration Rights
Agreement dated as of May 13, 2002, and as amended by that certain Second
Amendment to Amended and Restated Registration Rights Agreement dated as of
January 21, 2003 (together with all joinders thereto, the "REGISTRATION RIGHTS
AGREEMENT"); and
WHEREAS, concurrently with the execution of this Third Amendment, JJDC
is acquiring from the Company units (the "UNITS") consisting of one share of
Series C Preferred Stock and one warrant to purchase nine-tenths (0.9) of one
share of Series C Preferred Stock (the "WARRANTS"), pursuant to a Unit Purchase
Agreement (the "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, each of the 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 Registration
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 Registration Rights Agreement
(the "POWER OF ATTORNEY"); and
WHEREAS, as a condition to entering into and consummating the Purchase
Agreement, JJDC has required the Company to amend the Registration Rights
Agreement in order to, among other things, include the Common Stock received
upon conversion of the Series C Preferred Stock included in the Units (including
conversion of the Series C Preferred Stock received upon exercise of the
Warrants included in the Units) as "Registrable Securities" within the meaning
of the Registration Rights Agreement; and
WHEREAS, to induce JJDC to enter into and consummate the Purchase
Agreement, the Company desires to amend the Registration Rights Agreement on the
terms and conditions set forth below; and
WHEREAS, Section 13(d) of the Registration Rights Agreement provides
that the Registration Rights Agreement may not be amended or modified, and no
provision thereof may be waived, without the consent of (i) the Company, (ii)
the Initial Series B Investors holding at least 60% of the votes entitled to be
cast by the holders of Series B Conversion Shares owned by all such Initial
Series B Investors, solely with respect to such Series B Conversion Shares,
(iii) the Initial Series C Investors holding at least 60% of the votes entitled
to be cast by the holders of Series C Conversion Shares owned by all such
Initial Series C Investors, solely with respect to such Series C Conversion
Shares, and (iv) the holders of a majority of the votes entitled to be cast by
the holders of the Registrable Securities then outstanding (collectively, the
"REQUIRED APPROVALS").
NOW, THEREFORE, in consideration of the premises, the agreements and
mutual covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, 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 have the respective meanings ascribed to such terms in the
Registration Rights Agreement.
2. Amendments to Registration Rights Agreement.
a. The following defined terms are hereby amended and
restated in their entirety as follows:
(1) "Existing Holders" means those holders of
the Company's Series B Preferred Stock and those holders of the Company's Series
C Preferred Stock, in each case who are a party to this Registration Rights
Agreement.
(2) "Series C Investor" shall mean,
collectively, (A) the purchasers of Series C Preferred Stock pursuant to the
Series C Purchase Agreement, including the Additional Series C Investors (as
defined in the First Amendment), (B) the purchasers of Units pursuant to any
Unit Purchase Agreement, and (C) Silicon Valley Bank.
(3) "Series C Preferred Stock" shall mean,
collectively, (i) the shares of Series C Preferred Stock issued pursuant to the
Series C Purchase Agreement, whether at the Initial Closing or at a Subsequent
Closing (and including the Additional Series C Preferred Stock), and (ii) any
shares of Series C Preferred Stock purchased pursuant to or in connection with a
Unit Purchase Agreement (including but not limited to those shares issued upon
exercise of the Warrants).
(4) "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 Existing Holders, holders
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of the Series C Preferred Stock, certain holders of the Common Stock and certain
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.
(5) "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. Additional Parties. The Company, together with each Consenting
Holder, without any further action on their respective parts, hereby consents to
the inclusion of the Common Stock received directly or upon conversion of any
convertible securities included in a Strategic Investor Offering as Registrable
Securities, on substantially the terms and conditions applicable to other
Registrable Securities pursuant to the Registration Rights Agreement.
4. Ratification of Registration Rights Agreement. Except as
expressly amended hereby, all of the terms of the Registration Rights Agreement
shall remain in full force and effect and are hereby ratified and confirmed.
5. Governing Law. This Third 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.
6. Counterparts; Facsimile Execution. This Third Amendment may be
executed in any number of counterparts, including by facsimile signature, each
of which shall be an original and all of which, when taken together, shall be
deemed one and the same agreement.
7. Effective Time. This Third Amendment shall become effective
and legally binding upon the Company and the Existing Holders and shall be
deemed to effectively amend the Registration Rights Agreement, when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of the Required Approvals.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.
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Exhibit 10.16(C)
IN WITNESS WHEREOF, the parties hereto have executed, or caused this
Third Amendment to Amended and Restated Registration Rights Agreement to be
executed by its duly authorized officer or other representative, on the date and
year first above written.
ANIMAS CORPORATION XXXXXXX AND XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------- --------------------------
Name: Name: Xxxxx X. Xxxxx
Title: Title: Vice President
/s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------
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.
