EXHIBIT 10.18(C)
THIRD AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT (the "Third Amendment") is entered into this 24th day of March, 2004,
by and among Animas Corporation, a Delaware corporation (the "Company"), and
certain holders of the Company's capital stock.
WHEREAS, the Company and certain of the Holders have entered
into that Amended and Restated Stockholders Agreement, dated as of October 11,
2001 (as amended by the First Amendment to Amended and Restated Stockholders
Agreement dated as of May 13, 2002 (the "First Amendment"), together with all
joinders thereto, and the Second Amendment to Amended and Restated Stockholders
Agreement dated as of January 21, 2003, together will all joinders thereto, the
"Stockholders Agreement");
WHEREAS, the Company sold and issued additional shares of
Series C Convertible Preferred Stock, $0.01 par value per share (the "Series C
Preferred Stock"), including those issuable upon exercise of warrants to
purchase shares of Series C Preferred Stock (the "Warrants"), pursuant to a Unit
Purchase Agreement dated January 21, 2003, a Unit Purchase Agreement dated March
21, 2003, a Unit Purchase Agreement dated November 18, 2003, and any other Unit
Purchase Agreement (each, a "Unit Purchase Agreement" and, collectively, "Unit
Purchase Agreements"), among the Company and the purchasers thereunder (the
"Unit Purchasers");
WHEREAS, the Company refinanced and increased its line of
credit pursuant to the Loan and Security Agreement dated as of November 7, 2003
(the "2003 SVB Line of Credit"), by and among the Company, Animas Diabetes Care,
LLC and Silicon Valley Bank, a California chartered bank ("SVB"), and in
connection with the 2003 SVB Line of Credit, issued a warrant to purchase 5,000
shares of Series C Preferred Stock to SVB (the "2003 SVB Warrant");
WHEREAS, the Company and the Holders desire to amend the
Stockholders Agreement as set forth herein to subject all Unit Purchasers to
those certain rights and obligations as set forth in the Stockholders Agreement;
WHEREAS, the Company and the Holders desire to further amend
the Stockholders Agreement to make all Warrants and the 2003 SVB Warrant subject
to the Stockholders Agreement;
WHEREAS, the Company and the Holders desire to further amend
the Stockholders Agreement with respect to termination of the Stockholders
Agreement as described in Section 8 thereto; and
WHEREAS, Section 14 of the Stockholders Agreement provides
that the Stockholders Agreement may be amended or modified upon the written
consent of (i) the Company, (ii) the Initial Series B Purchasers holding at
least 60% of the votes entitled to be cast by the holders of Series B
Convertible Preferred Stock, $0.01 par value per share (the "Series B
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Preferred Stock") owned by all such Initial Series B Purchasers, solely with
respect to such shares of Series B Preferred Stock, (iii) the Initial Purchasers
holding at least 60% of the votes entitled to be cast by the holders of shares
of Series C Preferred Stock owned by all such Initial Purchasers, solely with
respect to such shares of Series C Preferred Stock, and (iv) 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 Preferred Stock (for purposes of
this Third Amendment, collectively, the "Requisite Shares").
NOW THEREFORE, in consideration of the premises and the mutual
promises, covenants and agreement contained in this Third 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 Stockholders
Agreement.
2. Amendments to Stockholders Agreement.
a. Additional Defined Term. The following
additional defined term is hereby added to the Stockholders Agreement:
i) "Unit Purchase Agreements" shall
mean, collectively, that certain Unit Purchase Agreement dated January 21, 2003
(together with all joinders thereto), that certain Unit Purchase Agreement dated
March 21, 2003 (together will all joinders thereto), that Unit Purchase
Agreement dated November 18, 2003 (together will all joinders thereto), and any
other Unit Purchase Agreement among the Company and any other parties thereto
pursuant to which such other party or parties acquired Units.
b. Amendments to Existing Definitions. The
following existing defined terms of the Stockholders Agreement are hereby
amended:
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 First Amendment), (ii) the purchasers of Units pursuant to the
Unit Purchase Agreements, and (iii) Silicon Valley Bank;
ii) The term "SVB Warrants" shall be
amended in its entirety and, from and after the date hereof, shall mean any
warrants issued or which may be issued to Silicon Valley Bank to purchase up to
10,000 shares (subject to adjustment for stock splits, dividends,
reclassifications, exchanges, combinations or substitutions) of Series C
Preferred Stock (including but not limited to those certain warrants to purchase
5,000 shares of Series C Preferred Stock issued to Silicon Valley Bank on
November 4, 2002 and those certain warrants to purchase 5,000 shares of Series C
Preferred Stock issued to Silicon Valley Bank on December 31, 2003);
iii) The definition of "Unit Purchase
Agreement" shall be deleted from this Agreement and replaced in its entirety
with the definition of "Unit Purchase Agreements" described above.
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iv) The term "Units" shall be amended
in its entirety and, from and after the date hereof, shall mean, collectively,
those certain Units purchased pursuant to the Unit Purchase Agreements and
consisting of one share of Series C Preferred Stock and a Warrant; and
v) The term "Warrants" shall be
amended in its entirety and, from and after the date hereof, shall mean,
collectively, those certain warrants to purchase nine-tenth of one share (0.9)
of Series C Preferred Stock issued pursuant to the Unit Purchase Agreements.
c. Amendment to Section 8. The provisions of
Section 8 of the Stockholders Agreement are hereby amended and restated to read,
in its entirety, as follows:
"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
before deducting underwriters discounts and
commissions) equals or exceeds $15.00 in the
case of an offering which closes on or prior
to December 31, 2004, or $20.00 thereafter,
in each case as subsequently adjusted to
reflect the effect of any subdivision,
combination, or reverse stock split."
3. Ratification of Stockholders Agreement. Except as
otherwise amended herein, all other provisions of the Stockholders Agreement, as
previously amended, shall remain in full force and effect, and are hereby
ratified and confirmed.
4. 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.
5. 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.
6. Effective Time. This Third Amendment shall become
effective and legally binding upon the Company and the other parties hereto, and
shall be deemed to
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effectively amend the Stockholders Agreement, as previously amended, when one or
more counterparts hereof, individually or taken together, shall bear the
signatures of the holders (or their designated representatives) of the Requisite
Shares.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused this
Third Amendment to Amended and Restated Stockholders Agreement to be executed by
its duly authorized officer or other representative, on the date and year first
above written.
ANIMAS CORPORATION
By: \s\ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
\s\ Xxxxxxxxx Xxxxxxxx
---------------------------------
XXXXXXXXX XXXXXXXX, PRESIDENT
AND CHIEF EXECUTIVE OFFICER OF
ANIMAS CORPORATION, SIGNING
PURSUANT TO THE POWER OF
ATTORNEY GRANTED BY:
XXXXXXXXX XXXXXXXX XXXXXX XXXXX
XXXXXX XXXXXXXX TENNYSON FUND II, LLLP
XXXXX XXXXXXXX TRUST BANKAMERICA INVESTMENT
XXXXX XXXXXXXX TRUST CORPORATION
XXXXXXXXX XXXXXXXX TRUST XXX XXXXXXX XXXXXXX
XXXXX XXXXXXXX TRUST XXXX X. XXXXX
XXXX XXXXXXXX TRUST GRAHAME XXXXX XXXXXX
XXXXXXX X. XXXXXX, XX XXXXX XXXXX
TRUST UNDER AGREEMENT FOR XXXX XXXXX
XXXXXXX X. XXXXXX, V CITY NATIONAL BANK TTEE FBO
TRUST UNDER AGREEMENT FOR DWT/XXXXXXX
XXXXX X. XXXXXX XXXXXX X. XXXXXX, XX
DEED OF TRUST OF XXXXXXX X. XXXXXX X. X. XX
XXXXXX, XX, DATED MAY 19, 1996 XXXXXXX X. XXXXXXXX
DEED OF TRUST OF XXXXXXX X. XXXX X. XXXXXXXX
XXXXXX, IV, DATED JULY 27, 1998 XXXX XXX XXXXXXXX
HLM/UH FUND L.P. XXXXXXX XXXXX
HLM OPPORTUNITIES FUND, X.X. XXXXXXX XXXXXX HYBRID PARTNERS II, L.P.
HLM/CB FUND II, X.X. XX ASSOCIATES
LIBERTY ADVISORS, INC. U.S. BANCORP XXXXX XXXXXXX ECM FUND II,
LIBERTY VENTURES I, L.P. LLC
LIBERTY VENTURES II, L.P. U.S. BANCORP XXXXX XXXXXXX ECM FUND II,
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TDH CAPITAL PARTNERS INVESTORS 03
ANVERS L.P. INVESTCARE PARTNERS LIMITED
ANVERS II L.P. PARTNERSHIP
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