Amendment to Second Amended and Restated Investor Rights Agreement by and among Immunicon Corporation and Investors

Summary

This amendment, dated March 6, 2002, updates the Second Amended and Restated Investor Rights Agreement between Immunicon Corporation and various investors. The changes clarify and modify certain company obligations, including limits on incurring debt and investments, requirements for insurance and tax payments, maintenance of intellectual property rights, and notification of material adverse changes. The amendment also requires employees and consultants to sign confidentiality agreements. All other terms of the original agreement remain in effect.

EX-10.8 10 a2123210zex-10_8.htm EX-10.8
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Exhibit 10.8

AMENDMENT TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT

THIS AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this "Amendment") is made and entered into on March 6, 2002, by and among Immunicon Corporation, a Delaware corporation (the "Company"), and certain entities and persons listed on Schedule A to that certain Second Amended and Restated Investor Rights Agreement, dated as of December 13, 2001, by and among the Company and the signatories thereto (the "Agreement"). Capitalized terms used herein but not defined shall have the meanings given to such terms in the Agreement.

WHEREAS, the parties wish to amend the Agreement to effectuate the changes set forth herein.

NOW, THEREFORE, the parties hereto agree as follows:

1. The first sentence of Section 4.1 of the Agreement is hereby amended to read in its entirety as follows:

Each of the Company and the Company's existing and future subsidiaries (each, a "Subsidiary," and collectively, the "Subsidiaries") shall permit each Qualified Investor or any authorized representative thereof, to visit and inspect its properties, including its corporate and financial records, and to discuss its business and finances its officers, during normal business hours following reasonable notice and as often as may be reasonably requested.

2. Section 4.4(a) of the Agreement is hereby amended to read in its entirety as follows:

Neither the Company nor any Subsidiary shall incur additional indebtedness in an amount in excess of $100,000 without the prior written consent of 66²/3% of the holders of the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock, voting together as a single class.

3. Section 4.4(b) of the Agreement is hereby amended to read in its entirety as follows:

Each of the Company and the Subsidiaries shall maintain at all times (i) its properties in good condition and (ii) a minimum of $1,000,000 of insurance on its properties.

4. Section 4.4(c) of the Agreement is hereby amended to read in its entirety as follows:

The Company and each Subsidiary shall pay all federal, state and local taxes as they come due and comply with all federal, state and local laws.

5. Section 4.4(e) of the Agreement is hereby amended to read in its entirety as follows:

Each of the Company and the Subsidiaries shall use its best and reasonable efforts to maintain its rights to its Intellectual Property (as defined in the Series F Purchase Agreement).

6. Section 4.4(f) of the Agreement is hereby amended to read in its entirety as follows:

Neither the Company nor any Subsidiary shall enter into any investments, other than investments of idle cash in accordance with the policies approved by the Board of Directors of the Company, in excess of $100,000 without the prior written consent of 66²/3% of the holders of the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock, voting together as a single class.

7. Section 4.4(g) of the Agreement is hereby amended to read in its entirety as follows:

Neither the Company nor any Subsidiary shall create any new subsidiary without the prior written consent of 66²/3% of the holders of Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock, voting together as a single class.

8. Section 4.5 of the Agreement is hereby amended to read in its entirety as follows:

The Company shall promptly notify the Investors of any material adverse change in the business, prospects, assets or condition, financial or otherwise, of the Company or any Subsidiary, and of any litigation or governmental proceeding or investigation brought or, to the best of the Company's knowledge, threatened against, the Company, any Subsidiary, or any officer, director, key employee or principal stockholder of the Company or any Subsidiary, materially adversely affecting or which, if adversely determined, would materially adversely affect, the business, prospects, assets or condition, financial or otherwise, of the Company or any Subsidiary.

9. Section 4.6 of the Agreement is hereby amended to read in its entirety as follows:

Each of the Company and the Subsidiaries shall require all employees and consultants now or hereafter employed or engaged by it who have access to confidential and proprietary information of the Company or any Subsidiary to enter into Nondisclosure and Assignment of Inventions Agreements in such form as may be approved by the Board of Directors of the Company.

10. As amended hereby, the Agreement is ratified and confirmed in all respects.

[Signature Pages Follow]

IN WITNESS WHEREOF, this Amendment to Second Amended and Restated Investor Rights Agreement has been executed as of the date first above written.

		IMMUNICON CORPORATION
		By:		/s/ EDWARD L. ERICKSON Edward L. Erickson, Chief Executive Officer
		INVESTORS:
		Burrill Biotechnology Capital Fund, L.P.
		By:		Burrill & Company LLC, its general partner
		By:		/s/ G. STEVEN BURRILL G. Steven Burrill, Chief Executive Officer
		Burrill Diagnostics Capital Fund, L.P.
		By:		Burrill & Company LLC, its general partner
		By:		/s/ G. STEVEN BURRILL G. Steven Burrill, Chief Executive Officer
		Wheatley Partners III, L.P.
		By:		Wheatley Partners III LLC, its general partner
		By:		/s/ IRVIN LIELIER Name: Irvin Lielier Title: President

S-1

		Wheatley Associates III, L.P.
		By:		Wheatley Partners III, LLC, its general partner
		By:		/s/ IRVIN LIELIER Name: Irvin Lielier Title: President
		Wheatley Foreign Partners III, L.P.
		By:		Wheatley Partners III, LLC, its general partner
		By:		/s/ IRVIN LIELIER Name: Irvin Lielier Title: President
		Wheatley MedTech Partners, L.P.
		By:		Wheatley MedTech Partners, LLC, its general partner
		By:		/s/ DAVID R. DANTZKER David R. Dantzker, Vice President
		LHC Corporation
		By:		/s/ BRIAN J. GEIGER Name: Brian J. Geiger Title: Exec. V.P.

S-2

		MDS Life Sciences Technology Fund Limited Partnership
		By:		MDS Life Sciences Technology Fund (GP) Inc., its general partner
		By:		/s/ MICHAEL CALLAGHAN Name: Michael Callaghan Title: Vice President
		By:		/s/ RICHARD LOCKIE Name: Richard Lockie Title: Vice President
		MDS Life Sciences Technology Fund USA, L.P.
		By:		MDS Capital USA (GP) Inc., its general partner
		By:		/s/ THOMAS E. WILLETT Name: Thomas E. Willett Title: Director
		MDS Life Sciences Technology Barbados Investment Trust
		By:		/s/ BEN L. ARRINDELL Name: Ben L. Arrindell Title: Trustee
		SC Biotechnology Development Fund LP
		By:		SC (GP) Inc.
		By:		/s/ EVE WILSON Name: Eve Wilson Title:
		By:		/s/ WILLIAM WALMSLEY Name: William Walmsley Title:

S-3

		TL Ventures III L.P.
		By:		TL Ventures III Management L.P., its general partner
		By:		TL Ventures III General Partner L.P., its general partner
		By:		TL Venture III Management LLC, its general partner
		By:		/s/ Name: Title: Treasurer & Asst. Secretary
		TL Ventures III Offshore L.P.
		By:		TL Ventures III Offshore Partners L.P., its general partner
		By:		TL Ventures III Offshore Ltd., its general partner
		By:		/s/ Name: Title: Treasurer & Asst. Secretary
		TL Ventures III Interfund L.P.
		By:		TL Ventures III LLC, its general partner
		By:		/s/ Name: Title: Treasurer & Asst. Secretary
		Canaan Equity, L.P.
		By:		Canaan Equity Partners, L.L.C.
		By:		/s/ Name: Title:

S-4

		Canaan Equity II L.P.
		By:		Canaan Equity Partners II, LLC
		By:		/s/ Name: Title:
		Canaan Equity II L.P. (QP)
		By:		Canaan Equity Partners II LLC
		By:		/s/ Member/Manager:
		Canaan Equity II Entrepreneurs LLC
		By:		Canaan Equity Partners II LLC
		By:		/s/ Member/Manager:
		/s/ SETH A. RUDNICK Seth A. Rudnick, M.D.
		MedCapital Investments, LLC
		By: MedCapital, LLC
		By:		/s/ JAN ROCK Jan Rock, Administrative Member
		Foundation Medical Partners, L.P.
		By:		Foundation Medical Managers, LLC
		By:		/s/ JONATHAN COOL Jonathan Cool, Manager

S-5

		Johnson & Johnson Development Corporation
		By:		/s/ TING PAU OEI Ting Pau Oei Vice President
		Anthem Capital, L.P.
		By:		Anthem Capital Partners, L.P., its general partner
		By:		Anthem Capital Partners, Inc., its general partner
		By:		/s/ Gerald Schaafsma Name: Gerald Schaafsma Title: General Partner
		Cleveland Clinic Foundation
		By:		/s/
				Name: Title:
		EquityFourLife (Bahamas) Ltd.
		By:		/s/ Name: Title: Director
		By:		/s/ Name: Title:
		/s/ ROBERT F. JOHNSTON Robert F. Johnston
		/s/ ZOLA P. HOROWITZ Zola P. Horowitz, Ph.D.

S-6

		Edward L. Erickson and Helen Masten-Erickson, as joint tenants by the entireties
		By:		/s/ EDWARD L. ERICKSON Edward L. Erickson
		By:		/s/ HELEN MASTEN-ERICKSON Helen Masten-Erickson

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AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT