FIRST AMENDMENT TO SEVENTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

EX-4.7 5 dex47.htm FIRST AMENDMENT TO SEVENTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT First Amendment to Seventh Amended and Restated Stockholders Agreement

Exhibit 4.7

FIRST AMENDMENT TO

SEVENTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

This First Amendment (this “Amendment”) amends that certain Seventh Amended and Restated Stockholders Agreement, dated as of January 25, 2007 (the “Agreement”), and is entered into as of April 6, 2007, by and among NimbleGen Systems, Inc., a Delaware corporation, the individuals and entities listed on Exhibit A who have executed a counterpart signature page hereto (each individually a “Common Stockholder” and collectively the “Common Stockholders”), the individuals and entities listed on Exhibit B who have executed a counterpart signature page hereto (each individually a “Series E Stockholder” and collectively the “Series E Stockholders”), and the individuals and entities listed on Exhibit C who have executed a counterpart signature page hereto (each individually a “Series F Stockholder” and collectively the “Series F Stockholders”).

R E C I T A L S

WHEREAS, the Common Stockholders are the holders of more than fifty percent (50%) of the Common Stock held by those stockholders who or which are parties to the Agreement, and by their execution of this Amendment, they are consenting, separately as a single class, hereto;

WHEREAS, the Series E Stockholders are the holders of more than fifty percent (50%) of the Series E Preferred Stock held by those stockholders who or which are parties to Agreement, and by their execution of this Amendment, they are consenting, separately as a single class, hereto;

WHEREAS, the Series F Stockholders are the holders of more than fifty percent (50%) of the Series F Preferred Stock held by those stockholders who or which are parties to Agreement, and by their execution of this Amendment, they are consenting, separately as a single class, hereto; and

WHEREAS, the parties have determined it is their respective best interests to amend the Agreement as set out below.

A G R E E M E N T

NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto mutually agree as follows:

1. Amendment of the Agreement.

(a) Section 5.1 of the Agreement hereby is deleted in its entirety and replaced with the following:

“5.1. Election of Directors. On all matters relating to the election of directors of the Company, each of the Stockholders agrees to vote all Shares which constitute voting stock now held or hereafter acquired by such Stockholder

(or the holders thereof shall consent pursuant to an action by written consent) so as to elect and maintain in office the following members to the Company’s Board of Directors and to remove from office from time to time individuals not satisfying the indicated criteria:

(a) one (1) individual nominated by vote of the holders of a majority of the outstanding Common Stock;

(b) two (2) individuals nominated by Tactics II LLC;

(d) one (1) individual nominated by Skyline Venture Management II LLC;

(e) one (1) individual nominated by Baird Venture Partners Management Company I, LLC;

(f) one (1) individual nominated by Venture Investors LLC;

(g) one (1) individual nominated by Cargill, Incorporated;

(h) the individual serving from time to time, if any, as the full-time Chief Executive Officer or Chief Operating Officer, as the case may be, of the Company; and

(i) up to two (2) other individuals designated (which designation may be changed from time to time) by the affirmative vote of a majority of the members of the Company’s Board of Directors then in office.

Notwithstanding any term or implication above in this Section 5.1 or in Section 9.2 to the contrary, any of the Stockholders named in Subsections 5.1(a)-(g) above from time to time may waive their or its right to nominate an individual as a director by a written waiver delivered to the Company (to the attention of its Secretary) which shall be irrevocably and unconditionally effective for the one hundred eighty (180) day period commencing on the date of delivery of such waiver to the Company (or such longer period as may be specified in any such written waiver) in which event, during the period the waiver is effective, the individual that such Stockholder(s), absent such waiver, would be entitled to nominate pursuant to whichever is applicable of Subsections 5.1(a)-(g) above instead shall be an individual who (in addition to the two individuals specified in Subsection 5.1(i) as being subject to such designation) may be designated by the Company’s Board of Directors then in office in accordance with Subsection 5.1(i) above and who, if so designated, shall be considered for all purposes hereof to be an individual designated by the Company’s Board of Directors then in office in accordance with Subsection 5.1(i) above. Further notwithstanding any term or implication above in this Section 5.1 to the contrary, in the event that any of the Stockholders named in Subsections 5.1(b)-(g) above, together with such Stockholder’s Affiliates, shall at any time cease to own any of the then issued and outstanding shares of Common Stock or Preferred Stock, the holders of a majority of the outstanding Series E Preferred Stock shall thereafter assume the rights previously granted to such Stockholder pursuant to this Section 5.1.”

(b) Section 7.4 of the Agreement hereby is deleted in its entirety and replaced with the following:

“7.4 Directors’ Expenses. The Company shall not pay any compensation to any member of the Company’s Board of Directors in connection with the performance of his or her duties as a director; provided, however, that, as of and after January 30, 2007, the Company may pay such compensation (including for service on a committee established by the Board of Directors) to any director who is an individual designated in accordance with Subsection 5.1(i) as is approved by the Company’s Board of Directors; and provided, further, the Company shall reimburse the reasonable out of pocket expenses of each member of the Company’s Board of Directors in connection with the performance of his or her duties as director.”

2. Agreement Otherwise Unaffected. The Agreement, as amended by this Amendment, shall remain in full force and effect.

3. Counterparts; Facsimile Signatures. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. This Amendment may be executed by facsimile and each facsimile signature will have the same effect as an original signature.

[Remainder of this page intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT TO SEVENTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date set forth in the first paragraph hereof.


COMPANY:

NIMBLEGEN SYSTEMS, INC.

By:		/s/ Stanley D. Rose
Print Name:		Stanley D. Rose
Title:		CEO

STOCKHOLDER:

SKYLINE VENTURE PARTNERS II, L.P.

By:		Skyline Venture Management II LLC,
		its General Partner

By:		/s/ John G. Freund
		John G. Freund, Managing Director

SKYLINE VENTURE PARTNERS QUALIFIED PURCHASER FUND II, L.P.

By:		Skyline Venture Management II LLC, its General Partner

By:		/s/ John G. Freund
		John G. Freund, Managing Director


SKYLINE EXPANSION FUND, L.P.

By:		Skyline Expansion Fund Management, LLC
Its:		General Partner
By:		Skyline Venture Management III, LLC
Its:		Managing Member

By:		/s/ John G. Freund
		John G. Freund, Managing Director

TACTICS II LLC

By:		/s/ Robert J. Palay
Print Name:		Robert J. Palay
Title:		Member

NIMBLEGEN, INC.

By:		/s/ Franco Cerrina
Print Name:		Franco Cerrina
Title:		Treasurer/Secretary

TACTICS II INVESTMENTS LLC

By:		/s/ Robert J. Palay
Print Name:		Robert J. Palay
Title:		Member

780 PARTNERS

By:		/s/ Richard J. Bliss
Print Name:		Richard J. Bliss
Title:		Managing Partner


FHF PARTNERS

By:		/s/ Mitchell S. Fromstein
Print Name:		Mitchell S. Fromstein
Title:		General Partner

WISCONSIN ALUMNI RESEARCH FOUNDATION

By:
Print Name:
Title:

ICE NINE INVESTMENTS, LLC

By:
Print Name:
Title:


Frederick R. Blattner

/s/ Frank V. Sica
Frank V. Sica


Roland Green


Emile Nuwaysir


VENTURE INVESTORS EARLY STAGE
FUND III LIMITED PARTNERSHIP

By:		Venture Investors LLC, its General Partner

By:		/s/ John Neis
		John Neis, Member
BAIRD VENTURE PARTNERS I LIMITED PARTNERSHIP

By:		Baird Venture Partners Management
		Company I, LLC, its General Partner

By:		/s/ Peter K. Shagory
Title:		Director

BVP I AFFILIATES FUND LIMITED PARTNERSHIP

By:		Baird Venture Partners Management
		Company I, LLC, its General Partner

By:		/s/ Peter K. Shagory
Title:		Director

STATE OF WISCONSIN INVESTMENT BOARD

By:		/s/ Christopher P. Prestigiacomo
Print Name:		Christopher P. Prestigiacomo
Title:		Portfolio Manager

SCHOTT AG

By:		/s/ Dr. Juergen Sacknoff //s/ Dr. Gordon Weber
Print Name:		Dr. Juergen Sacknoff / Dr. Gordon Weber
Title:		VP Corp. Strategy/M&A / General Counsel



Michael J. Treble

/s/ David Sneider
David Sneider

ITX INTERNATIONAL EQUITY CORPORATION

By:		/s/ Takehito Jimbo
Print Name:		Takehito Jimbo
Title:		President

THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEMS

By:		/s/ John A. Roan
Print Name:		John A. Roan
Title:		Executive VP for Business Affairs

TEXAS INSTRUMENTS, INCORPORATED

By:
Print Name:
Title:


Rodney Wallace

/s/ Frank Gerome
Frank Gerome


J. Warren Huff



David M. Schaller

STARTech EARLY VENTURES, LLC

By:
Print Name:
Title:

STARTech SEED FUND II, L.P.

By:
Print Name:
Title:


Harold Garner


Dan Clutter


Steven Smith

/s/ Stanley D. Rose
Stanley D. Rose

CARGILL INCORPORATED

By:
Print Name:
Title:


TOPSPIN PARTNERS, L.P.

By:
Print Name:
Title:

TOPSPIN ASSOCIATES, L.P.

By:
Print Name:
Title:

BROOKSIDE CAPITAL PARTNERS FUND, L.P.

By:		/s/ Matt McPherson
Print Name:		Matt McPherson
Title:		Managing Director

ADAGE CAPITAL PARTNERS, L.P.

By:		/s/ Dan Lehan
Print Name:		Dan Lehan
Title:		Chief Operating Officer

STARK MASTER FUND LTD.

By:
Print Name:
Title:


BBT FUND, L.P.

By:		BBT Genpar, L.P.
Its:		General Partner
By:		FFT-FW, Inc.
Its:		General Partner

By:
Print Name:
Title:

CAP FUND, L.P.

By:		Cup Genpar, L.P
Its:		General Partner
By:		CAP-FW, Inc.
Its:		General Partner

By:
Print Name:
Title:

SRI FUND, L.P.

By:		SRI Genpar, L.P.
Its:		General Partner
By:		BBT-FW, Inc.
Its:		General Partner

By:
Print Name:
Title:


QVT FUND LP

By:		QVT Associates GP LLC
Its:		General Partner

By:		/s/ Tracy Fu
Print Name:		Tracy Fu
Title:		Managing Member

By:		/s/ Lars Bader
Print Name:		Lars Bader
Title:		Managing Member

THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY (SBST-LS)

By:
		Martina Poquet, Director – Separate Investments

Exhibit A

COMMON STOCKHOLDERS


Stockholder		Shares of Common Stock
NimbleGen, Inc. 4810 Waukesha Street Madison, WI 53705 *@*		427,500

Roland Green 506 Ozark Trail Madison, WI 53705		67,500

Emile Nuwaysir 2022 Madison Street Madison, WI 53711 *@*		10,000

Tactics II Investments LLC Attn: Robert Palay 5 Revere Drive, Suite 200 Northbrook, IL 60062 *@*		405,000

Wisconsin Alumni Research Foundation Attn: Thomas H. Weaver 614 Walnut Street, 13^th Floor Madison, WI 53707 *@*		100,000

Skyline Venture Partners II, L.P. Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		7,906


Stockholder		Shares of Common Stock
Skyline Venture Partners Qualified Purchaser Fund Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		92,094

The Board of Regents of The University of Texas System c/o UT Southwestern Medical Center at Dallas Attention: Director for Technology Transfer 5323 Harry Hines Boulevard Dallas, TX 75390		39,667

Harold Garner 4100 Post Oak Road Flower Mound, TX 75028		39,667

STARTech Seed Fund II, L.P. 1302 East Collins Blvd Richardson, TX 75081 Attn: CFO, STARTech Early Ventures		16,221

STARTech Early Ventures, LLC 1302 East Collins Blvd Richardson, TX 75081 Attn: CFO, STARTech Early Ventures		10,058

J. Warren Huff 1002 Ashlawn Drive Southlake, TX 76092		15,605

David M. Schaller c/o CenterPoint Ventures 13455 Noel Road, Suite 1670 Dallas, TX 75240		7,783


Stockholder		Shares of Common Stock
Frank Gerome 763 Greenway Drive Coppell, TX 75019		2,999

Texas Instruments Incorporated Attn: Barbara C. Papas 7839 Churchill Way, MS 3995 Dallas, TX 75251		66,000

Total		1,308,000

Exhibit B

SERIES E PREFERRED STOCKHOLDERS


Stockholder		Shares of Series E Preferred Stock
780 Partners Attn: Richard Bliss 780 North Water Street Milwaukee, WI 53202 *@*		250,298

Baird Venture Partners, L.P. Attn: Peter K. Shagory 227 West Monroe, Suite 2200 Chicago, IL 60606 *@*		171,565

Frederick Blattner Genetics Building, B10 445 Henry Mall Madison, WI 53706 *@*		112,672

BVP I Affiliates Fund L.P. Attn: Peter K. Shagory 227 West Monroe, Suite 2200 Chicago, IL 60606 *@*		120,145

FHF Partners Attn: Mitchell Fromstein 5301 N. Ironwood Road, Suite #100 Glendale, WI 53217		248,331


Stockholder		Shares of Series E Preferred Stock
Ice Nine Investments, LLC c/o Quarles & Brady, LLP Attn: Nicholas Seay 1 South Pinckney Street, Suite 600 Madison, WI 53703 *@*		12,543

ITX International Equity Corporation Attn: Takehita Jimbo 700 E. El Camino Real, Suite 200 Mountain View, CA 94040		714,286

Emile Nuwaysir 2022 Madison Street Madison, WI 53711 *@*		3,673

Frank Sica c/o Menemsha Capital Partners, Ltd c/o Tailwind Capital 390 Park Avenue, 17^th Floor New York, NY 10022		249,521

Skyline Venture Partners Qualified Purchaser Fund Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		1,010,155

Skyline Venture Partners II, L.P. Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		86,716


Stockholder		Shares of Series E Preferred Stock
Skyline Expansion Fund, L.P. Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		22,222

David Sneider 301 S. Yellowstone Drive Madison, WI 53705 *@*		36,833

Schott AG Schott AG Attn: Mr. Frank Mohler Hattenbergstrasse 10 Mainz, Germany D-55122 *@* Schott North America, Inc. Attn: Gerhard Kiewel 555 Taxter Road Elmsford, New York 10523 *@*		2,690,477

State of Wisconsin Investment Board Attn: Chris Prestigiacomo Wisconsin Private Equity Portfolio 121 East Wilson Street Madison, WI ###-###-#### *@*		278,862

Tactics II LLC Attn: Robert Palay 5 Revere Drive, Suite 200 Northbrook, IL 60062 *@*		250,299


Stockholder		Shares of Series E Preferred Stock
Michael Treble 2820 Rancho Costero Carlsbad, CA 92009 *@*		24,942

Venture Investors Early Stage Fund III, L.P. Attn: John Neis 505 South Rosa Road Madison, WI 53719 *@*		438,936

Wisconsin Alumni Research Foundation Attn: Thomas H. Weaver 614 Walnut Street, 13^th Floor Madison, WI 53707 *@*		252,540

Texas Instruments Incorporated Attn: Barbara C. Papas 7839 Churchill Way, MS 3995 Dallas, TX 75251		17,777

STARTech Seed Fund II, L.P. Attn: Matt Blanton 1302 East Collins Boulevard Richardson, TX 75081		35,556

Roland Green 506 Ozark Trail Madison, WI 53705		407

Harold Garner 4100 Post Oak Road Flower Mound, TX 75028		1,000


Stockholder		Shares of Series E Preferred Stock
Stanley D. Rose One Science Court Madison, WI 53711 *@*		12,241

Rodney Wallace 20431 Peachtree Road Dickerson, MD 20842		407

Steven W. Smith 2854 Richardson Street Fitchburg, WI 53711 *@*		136

Daniel Clutter NimbleGen Systems, Inc. One Science Court Madison, WI 53711 *@*		382

Cargill, Incorporated Attn: James Sayre 1200 Park Place, Suite 300 San Mateo, CA 94403		156,017

Topspin Partners, L.P. Attn: Steve Winick 3 Expressway Plaza Roslyn Heights, NY 11577 *@*		41,916

Topspin Associates, L.P. Attn: Steve Winick 3 Expressway Plaza Roslyn Heights, NY 11577 *@*		1,985

Total:		7,242,840

Exhibit C

SERIES F PREFERRED STOCKHOLDERS


Stockholder		Shares of Series F Preferred Stock
780 Partners Attn: Richard Bliss 780 North Water Street Milwaukee, WI 53202 *@*		276,014

Baird Venture Partners, L.P. Attn: Peter K. Shagory 227 West Monroe, Suite 2200 Chicago, IL 60606 *@*		303,105

Frederick Blattner Genetics Building, B10 445 Henry Mall Madison, WI 53706 *@*		141,870

BVP I Affiliates Fund L.P. Attn: Peter K. Shagory 227 West Monroe, Suite 2200 Chicago, IL 60606 *@*		212,258

FHF Partners Attn: Mitchell Fromstein 5301 N. Ironwood Road, Suite #100 Glendale, WI 53217		263,182

Roland Green 506 Ozark Trail Madison, WI 53705		6,720


Stockholder		Shares of Series F Preferred Stock
Ice Nine Investments, LLC c/o Quarles & Brady, LLP Attn: Nicholas Seay 1 South Pinckney Street, Suite 600 Madison, WI 53703 *@*		10,529

Emile Nuwaysir 2022 Madison Street Madison, WI 53711 *@*		1,680

Frank Sica c/o Menemsha Capital Partners, Ltd c/o Tailwind Capital 390 Park Avenue, 17^th Floor New York, NY 10022		335,268

Skyline Venture Partners Qualified Purchaser Fund Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		905,643

Skyline Venture Partners II, L.P. Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		77,742

Skyline Expansion Fund, L.P. Attn: John Freund 525 University Avenue, #520 Palo Alto, CA 94301 *@*		666,667

David Sneider 301 S. Yellowstone Drive Suite 422 Madison, WI 53705 *@*		18,455


Stockholder		Shares of Series F Preferred Stock
State of Wisconsin Investment Board Attn: Chris Prestigiacomo Wisconsin Private Equity Portfolio 121 East Wilson Street Madison, WI ###-###-#### *@*		403,374

Tactics II LLC Attn: Robert Palay 5 Revere Drive, Suite 200 Northbrook, IL 60062 *@*		276,015

Michael Treble 2820 Rancho Costero Carlsbad, CA 92009 *@*		18,671

Venture Investors Early Stage Fund III, L.P. Attn: John Neis 505 South Rosa Road Madison, WI 53719 *@*		791,720

Wisconsin Alumni Research Foundation Attn: Thomas H. Weaver 614 Walnut Street, 13^th Floor Madison, WI 53707 *@*		312,987

Harold Garner 4100 Post Oak Road Flower Mound, TX 75028		24,538

Stanley D. Rose One Science Court Madison, WI 53711 *@*		201,980

Rodney Wallace 20431 Peachtree Road Dickerson, MD 20842		6,712


Stockholder		Shares of Series F Preferred Stock
Steven Smith 2854 Richardson Street Fitchburg, WI 53711 *@*		2,237

Dan Clutter NimbleGen Systems, Inc. One Science Court Madison, WI 53711 *@*		6,310

Cargill, Incorporated Attn: James Sayre 1200 Park Place, Suite 300 San Mateo, CA 94403		2,674,277

Topspin Partners, L.P. Attn: Steve Winick 3 Expressway Plaza Roslyn Heights, NY 11577 *@*		691,619

Topspin Associates, L.P. Attn: Steve Winick 3 Expressway Plaza Roslyn Heights, NY 11577 *@*		32,754

Brookside Capital Partners Fund, L.P. c/o Brookside Capital Attn: Jay Venkatesan 111 Huntington Avenue Boston, MA 02199		1,644,806

Adage Capital Partners, L.P. c/o Adage Capital Management, L.P. Attn: Dan Lehan 200 Clarendon Street, 52^nd Floor Boston, MA 02116		600,000


Stockholder		Shares of Series F Preferred Stock
Stark Master Fund Ltd. c/o Stark Offshore Management LLC 3600 South Lake Drive St. Francis, WI 53235		500,000

BBT Fund, L.P. c/o BBT Genpar, L.P. 201 Main Street, Suite 3200 Fort Worth, TX 76102		147,500

CAP Fund, L.P. c/o BBT Genpar, L.P. 201 Main Street, Suite 3200 Fort Worth, TX 76102		67,500

SRI Fund, L.P. c/o BBT Genpar, L.P. 201 Main Street, Suite 3200 Fort Worth, TX 76102		35,000

QVT Fund LP c/o QVT Associates GP LLC 1177 Avenue of the Americas, 9^th Floor New York, NY 10036 *@*		200,000


Stockholder		Shares of Series F Preferred Stock
The Board of Trustees of Leland Stanford Junior University The Board of Trustees of Leland Stanford Junior University c/o Stanford Management Company Attn: Martina Poquet 2770 Sand Hill Road Menlo Park, CA 94025 *@* The Board of Trustees of Leland Stanford Junior University c/o Stanford Management Company Attn: Jin Gu 2770 Sand Hill Road Menlo Park, CA 94025 *@*		20,000

J. Warren Huff 1002 Ashlawn Drive Southlake, TX 76092		3,337

Total:		11,880,470