EXHIBIT 10.17(C)
THIRD AMENDMENT TO
INVESTOR RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO INVESTOR RIGHTS AGREEMENT (this "Third
Amendment"), dated as of May 13, 2002, by and among Animas Corporation, a
Delaware corporation (the "Company"), and the individuals and entities
identified on the signature pages to the Second Amendment to the Investor Rights
Agreement dated as of October 11, 2001 (collectively, 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 the Series A
Preferred Stock under the Investor Rights Agreement dated as of January 28, 2000
among the Company and the Series A Investors ("Original Agreement");
WHEREAS, the Company previously agreed to sell and issue up to
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 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, the Company previously agreed to sell and issue up to
2,000,000 shares of its Series C Convertible Preferred Stock, $.01 par value per
share (the "Series C Preferred Stock") to certain investors (the "Series C
Investors"), pursuant to a Series C Convertible Preferred Stock Purchase
Agreement dated October 11, 2001 (the "Series C Purchase Agreement");
WHEREAS, in connection with and consideration for the execution and
delivery of the Series C Purchase Agreement, the Company extended certain
registration and other rights to the Series C Investors, pursuant to an Amended
and Restated Registration Rights Agreement dated as of October 11, 2001 and
entered into by and among the Company, the Series B Investors and the Series C
Investors (the "Amended and Restated Registration Rights Agreement");
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WHEREAS, pursuant to a Second Amendment to Investor Rights to Investor
Rights Agreement dated October 11, 2001 (the "Second Amendment"), the Company,
the Series A Investors and the Series B Investors amended the Original Agreement
and terminated the First 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 were superior to those
of the Series A Investors and to participate in certain other rights with the
Series A Investors;
WHEREAS, the Company has agreed to sell and issue up to an additional
480,000 shares of its Series C Preferred Stock (the "Additional Series C
Preferred Stock") to certain new investors (the "Additional Series C
Investors"), pursuant to an Amendment to the Series C Purchase Agreement, dated
May 13, 2002 (the "2002 Series C Purchase Agreement");
WHEREAS, in connection with and in consideration for the execution and
delivery of the 2002 Series C Purchase Agreement, the Company seeks to extend
certain registration and other rights to the Additional Series C Investors,
pursuant to a First Amendment to Amended and Restated Registration Rights
Agreement dated as of May 13, 2002 and entered into by and among the Company,
the Series B Investors, the Series C Investors and the Additional Series C
Investors (the "First Amendment to Registration Rights Agreement");
WHEREAS, the Company and the Series A Investors desire to amend the
Original Agreement, as amended by the Second Amendment, as set forth herein, to
enable the Additional Series C Investors to receive certain registration and
other rights under the Amended and Restated Registration Rights Agreement, as
amended by the First Amendment to Registration Rights Agreement (the "Amended
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, 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, may be amended or modified with the prior written consent of the
Company and (i) the Initial Series B Investors (as defined in the Amended
Registration Rights Agreement) holding at least 60% of votes entitled to be cast
by the holders of the Series B Conversion Shares (as defined in the Amended
Registration Rights Agreement) then held by all such Initial Series B Investors,
solely with respect to such Series B Conversion Shares, (ii) the Initial Series
C Investors (as defined in the Amended Registration Rights Agreement) holding at
least 60% of votes entitled to be cast by the holders of the Series C Conversion
Shares (as defined in the Amended Registration Rights Agreement) then held by
all such Initial Series C Investors, solely with respect to such Series C
Conversion Shares, (iii) the holders of a majority of the votes entitled to be
cast by the holders of the Registrable Securities (as defined in the Amended
Registration Rights Agreement) then outstanding, solely with respect to such
Registrable Securities
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and (iv) the holders of a majority of the Registrable Securities Then
Outstanding (for the purposes of this Third Amendment, the "Requisite Shares";
and
WHEREAS, the prior written consent of holders of the Requisite Shares
to effect this Third Amendment has been obtained;
NOW, THEREFORE, in consideration of the agreements and mutual covenants
set forth herein, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Original
Agreement, as amended.
2. Series C Investors. The meaning of the term "Series C
Investors" is amended to include the Additional Series C Investors.
3. Registration Rights Agreement. The meaning of the term
"Amended and Restated Registration Rights Agreement" is amended to mean the
Amended and Restated Registration Rights Agreement, as amended by the First
Amendment to the Amended and Restated Registration Rights Agreement entered into
among the Company and the other parties identified therein, dated as of the date
hereof.
4. Ratification of Original Agreement and Second Amendment.
Except as expressly amended hereby, all of the terms of the Original Agreement,
as amended, shall remain in full force and effect, and are hereby ratified and
confirmed.
5. Controlling Law. This Third Amendment and all questions
relating to its validity, interpretation, performance and enforcement shall be
governed by 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, and without the aid of
any canon, custom or rule of law requiring construction against the draftsman.
6. Execution in Counterparts and via Facsimile. This Third
Amendment may be executed via facsimile and in any number of counterparts, each
of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which together shall constitute one and the same
instrument. This Third Amendment shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of the Company and holders of the Requisite Shares required by Section 5 of the
Second Amendment.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Investor Rights Agreement on the date first above written.
COMPANY
Animas Corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Its: Vice President Finance, CFO
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