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

Summary

This amendment, dated June 30, 2003, updates the existing Investor Rights Agreement between Immunicon Corporation and its investors, including new investors purchasing Series F Convertible Preferred Stock. The amendment revises certain rights related to the issuance of common stock and clarifies the conditions for a qualified initial public offering. It also formally adds new investors as parties to the agreement, binding them to its terms. All other provisions of the original agreement remain in effect.

EX-10.9 11 a2123210zex-10_9.htm EX-10.9
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Exhibit 10.9

SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED

THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, AS AMENDED (this "Amendment") is made and entered into as of June 30, 2003, by and among Immunicon Corporation, a Delaware corporation (the "Company"), 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, as amended on March 6, 2002 (the "Agreement"), and those other signatories hereto who will be purchasing shares of Series F Convertible Preferred Stock of the Company pursuant to the Series F Preferred Stock Purchase Agreement of even date herewith (each a "New Investor" and, collectively, the "New Investors"). 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 and to permit each New Investor to enter into the Agreement.

NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:

1. Section 3.1(g) of the Agreement is hereby amended to read in its entirety as follows:

"(g) The rights of the Investors under this Section 3 shall not apply to:

(1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of Common Stock;

(2) Common Stock issued upon conversion of outstanding Stock;

(3) Common Stock or options therefor (including options for Common Stock currently outstanding) issued or issuable to officers, directors, consultants and employees of the Company or any subsidiary pursuant to the Company's stock purchase or option plans in place on the date hereof and in an aggregate amount not to exceed 3,900,000 shares of Common Stock;

(4) Common Stock offered by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company to the public;

(5) capital stock issued in connection with an acquisition approved by all of the directors elected by holders of the Stock of the assets or stock of another company so long as no beneficial holder of the acquired entity is, at the time of acquisition, a stockholder, officer or director of the Company or any of its subsidiaries or an affiliate of any such person;

(6) Common Stock, in a number of shares not to exceed an aggregate of 685,000 shares, issued or issuable in connection with transactions that are primarily for purposes other than raising equity financing approved by all of the non-employee members of the Board of Directors primarily for the purpose of (i) joint ventures, technology licensing or research and development activities, (ii) distribution or manufacture of the corporation's products or services or (iii) any other transactions involving corporate partners; and

(7) Common Stock, in a number of shares not to exceed an aggregate of 685,000 shares, issued or issuable to equipment lessors, financial institutions or similar entities in transactions approved by all of the non-employee members of the Board of Directors that are primarily for purposes other than raising equity financing."

2. Section 3.2(b) of the Agreement is hereby amended to read in its entirety as follows:

"(b) Upon the closing of the Company's first public offering of Common Stock which meets all of the following requirements: (a) proceeds (net of underwriting discounts and commissions) to the Company of at least $30,000,000 and (b) a price per share of at least $8.00 (as adjusted for stock splits, stock dividends, recapitalizations and similar events) (clauses (a) and (b) shall be referred to herein as a "Qualified IPO")."

3. Each New Investor is hereby added as a party to the Agreement and shall henceforth be deemed to be an "Investor" and a "Stockholder" for all purposes under the Agreement. Each New Investor acknowledges its receipt and understanding of the Agreement and agrees to be bound as an "Investor" and a "Stockholder" under the Agreement.

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

[Signature Pages Follow]

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

	IMMUNICON CORPORATION
	By:	/s/ EDWARD L. ERICKSON Edward L. Erickson, Chief Executive Officer
	NEW INVESTORS:
	Signature
	Print Name
	Print Name of Entity (if not natural person)
	Title of Signatory (if on behalf of entity)
	INVESTORS:
	Burrill Biotechnology Capital Fund, L.P.
	By:	Burrill & Company LLC, its general partner
	By:	G. Steven Burrill, Managing Member