**Exhibit 10.2**

 

**SECOND AMENDMENT TO LOAN AND SECURITYAGREEMENT**

 

**THIS SECOND AMENDMENT TO LOAN ANDSECURITY AGREEMENT** (this “Agreement”) made as ofJune     , 2004, by and between **SILICON VALLEY BANK**, aCalifornia-chartered bank (“Bank”) with its principal place of business at 3003Tasman Drive, Santa Clara, California 95054 and with a loan production officelocated at 5 Radnor Corporate Center, Suite 555, 100 Matsonford Road, Radnor,Pennsylvania 19187 and******IMMUNICON CORPORATION**, a Delaware corporation whose address is3401 Masons Mill Road, Suite 100, Huntingdon Valley, Pennsylvania 19006 (the“Company”); **IMMUNIVEST CORPORATION**, a Delaware corporation, **IMMCHOLDINGS, INC**., a Delaware corporation and **IMMUNICON EUROPE, INC**., aDelaware corporation whose addresses are 1209 Orange Street, Wilmington,Delaware  19801 (each a “Borrower” andcollectively, the “Borrowers”).

 

RECITALS.

 

A.                                   Borrowersand Bank have entered into that certain Loan and Security Agreement datedApril 30, 2002 (as thereafter amended from time to time, the “LoanAgreement”), pursuant to which Bank has agreed to establish certain loans infavor of Borrowers.

 

B.                                     Borrowershave requested that Bank modify certain provisions of the Loan Agreement, andthe Bank has agreed to the foregoing on the condition, among others, that thisAgreement be executed and delivered by Borrowers to Bank.

 

C.                                     Unlessotherwise defined herein, capitalized terms used herein shall have therespective meanings set forth in the Loan Agreement.

 

NOW, THEREFORE, inconsideration of the foregoing, and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, Borrower and Bankdo hereby agree as follows:

 

1.                                       Recitals.  The parties hereto acknowledge and agreethat the above Recitals are true and correct in all material respects and thatthe same are incorporated herein and made a part hereof by reference.

 

2.                                 Primary Accounts. Section 6.6 of the Loan Agreement is amended and restated in itsentirety as follows:

 

## **6.6**                                 Primary Accounts.

## ** **

Each Borrower will maintain its primary depository andoperating account with Bank and will maintain a portion of its excess cash withBank.

 

3.                                       FinancialCovenants.  Section 6.7 of theLoan Agreement is hereby amended and restated in its entirety as follows:

 

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6.7                                 FinancialCovenants.  Borrowers will maintain as of the last day of each month (unlessotherwise stated below):

 

#### (a)**                                 **Remaining Months Liquidity.  At all times that outstanding Obligationsare equal to or exceed Five Hundred Thousand Dollars ($500,000), Borrower willmaintain, as of the last day of each month, at least six (6) Remaining MonthsLiquidity and at all other times, Borrower will maintain, as of the last day ofeach month, at least four (4) Remaining Months Liquidity.

####  

4.                                       ComplianceCertificate.  Exhibit C tothe Loan Agreement is hereby replaced in its entirety with Exhibit Cattached hereto.

 

5.                                       Representationsand Warranties.  Each Borrowerhereby issues, makes, ratifies and confirms the representations, warranties andcovenants, as applicable to it, contained in the Loan Documents as of the datehereof, and further represents, warrants and covenants to the Bank as follows:

 

(i)                                     Powerand Authority.  Borrower has fullpower and authority to execute and deliver this Agreement and each of the otherLoan Documents executed and delivered by it, to make the borrowing hereunder,and to incur the Obligations, all of which have been duly authorized by allproper and necessary corporate action. Except for consents which have been obtained, no consent or approval ofstockholders or of any public authority is required as a condition to thevalidity or enforceability of this Agreement or any of the other Loan Documentsexecuted and delivered by Borrower.

 

(ii)                                  BindingAgreements.  This Agreement and eachof the other Loan Documents executed and delivered by Borrower have beenproperly executed by Borrower, constitute valid and legally binding obligationsof Borrower, and are fully enforceable against Borrower in accordance withtheir respective terms.

 

(iii)                               NoConflicting Agreements.  There is(a) no charter, by-law or preference stock provision of Borrower and noprovision of any existing mortgage, indenture, contract or material agreementbinding on Borrower or affecting its property, and (b) to the knowledge ofBorrower no provision of law or order of court binding upon Borrower, whichwould conflict with or in any way prevent the execution, delivery, orperformance of the terms of this Agreement or of any of the other LoanDocuments executed and delivered by Borrower or which would be violated as aresult of such execution, delivery or performance.

 

6.                                       ConditionsPrecedent.  This Agreement shall notbecome effective until Bank receives the following, each of which shall besatisfactory in form and substance to Bank:

 

(a)                                  proofthat Borrowers have paid all fees, costs and expenses to Bank in connectionwith this Agreement, including but not limited to all Bank’s attorneys fees andexpenses; and

 

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(b)                                 suchother information, instruments, opinions, documents, certificates and reportsas Bank may deem necessary.

 

7.                                       Counterparts.  This Agreement may be executed in any numberof duplicate originals or counterparts, each of which duplicate original orcounterpart shall be deemed to be an original and all taken together shallconstitute one and the same instrument.

 

8.                                       LoanDocuments; Governing Law; Etc.  ThisAgreement is one of the Loan Documents defined in the Loan Agreement and shallbe governed and construed in accordance with the laws of the Commonwealth ofPennsylvania. The headings and captions in this Agreement are for theconvenience of the parties only and are not a part of this Agreement.

 

9.                                       Acknowledgments.  Each Borrower hereby confirms to Bank theenforceability and validity of each of the Loan Documents.  In addition, each Borrower hereby agrees tothe execution and delivery of this Agreement and the terms and provisions,covenants or agreements contained in this Agreement shall not in any mannerrelease, impair, lessen, modify, waive or otherwise limit the joint and severalliability and obligations of Borrowers under the terms of any of the LoanDocuments, except as otherwise specifically set forth in this Agreement.  Each Borrower issues, ratifies and confirmsthe representations, warranties and covenants contained in the Loan Documents,except for such representations and/or warranties which, by their nature,covered specific facts and events as they existed as of the date they were originallymade under the Loan Agreement, in which case each Borrower issues, ratifies andconfirms such representations and/or warranties as of the date they wereoriginally made under the Loan Agreement.

 

10.                                 Modifications.  This Agreement may not be supplemented,changed, waived, discharged, terminated, modified or amended, except by writteninstrument executed by the parties.

 

[SIGNATURES ARE ONTHE FOLLOWING PAGE]

 

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IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be executed as of thedate first above written.

 
|   | BY:    | /s/ James G. Murphy                                                       |
|--------|--------|---------------------------------------------------------------------------|
|   |   | Sr. Vice President,  Finance and  Administration, Chief Financial Officer |
|   |   | IMMUNICON CORPORATION                                                     |
|   |   |                                                                      |
|   |   |                                                                      |
|   | BY:    | /s/ James G. Murphy                                                       |
|   |   | Treasurer                                                                 |
|   |   | IMMUNIVEST CORPORATION                                                    |
|   |   |                                                                      |
|   |   |                                                                      |
|   | BY:    | /s/ James G. Murphy                                                       |
|   |   | President                                                                 |
|   |   | IMMC HOLDINGS, INC.                                                       |
|   |   |                                                                      |
|   |   |                                                                      |
|   | BY:    | /s/ James G. Murphy                                                       |
|   |   | Treasurer                                                                 |
|   |   | IMMUNICON EUROPE, INC.                                                    |
|   |   |                                                                      |
|   |   |                                                                      |
|   | BY:    | /s/ Doug Marshall                                                         |
|   |   | Vice President                                                            |
|   |   | SILICON VALLEY BANK                                                       |
|   |   |                                                                      |
|   |   |                                                                      |
|   | BY:    | /s/ Maggie Garcia                                                         |
|   |   | AVP                                                                       |
|   |   | SILICON VALLEY BANK                                                       |

 

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**EXHIBIT C**

**COMPLIANCE CERTIFICATE**

 
| TO:    | SILICON VALLEY BANK  3003 Tasman Drive  Santa Clara, CA 95054 |
|--------|---------------------------------------------------------------|
|   |                                                          |
| FROM:  | IMMUNICON CORPORATION                                         |

 

The undersigned authorizedofficer of Immunicon Corporation (“Borrower”) certifies that under the termsand conditions of the Loan and Security Agreement among Borrower, itsSubsidiaries and Bank (the “Agreement”), (i) Borrower is in completecompliance for the period ending                        with all required covenants except as noted below and (ii) allrepresentations and warranties in the Agreement are true and correct in all materialrespects on this date.  Attached are therequired documents supporting the certification.  The Officer certifies that these are prepared in accordance withGenerally Accepted Accounting Principles (GAAP) consistently applied from oneperiod to the next except as explained in an accompanying letter or footnotes.  The Officer acknowledges that no borrowingsmay be requested at any time or date of determination that Borrower is not incompliance with any of the terms of the Agreement, and that compliance isdetermined not just at the date this certificate is delivered.

 

**Please indicate compliance status by circling Yes/No under“Complies” column.**

 
| **Reporting Covenant**                                                             |   | **Required**           |   |       |   | **Complies** |   |
|------------------------------------------------------------------------------------|--------|------------------------|--------|------------|--------|--------------|--------|
|                                                                               |   |                   |   |       |   |         |   |   |   |
| Monthly financial  statements                                                      |   | Monthly within 30 days |   |       |   | Yes          |   | No |   |
| Annual (Audited)                                                                   |   | FYE within 120 days    |   |       |   | Yes          |   | No |   |
|                                                                               |   |                   |   |       |   |         |   |   |   |
| **Financial Covenant**                                                             |   | **Required**           |   | **Actual** |   | **Complies** |   |
|                                                                               |   |                   |   |       |   |         |   |   |   |
| Maintain on a Monthly  Basis:                                                      |   |                   |   |       |   |         |   |   |   |
| Minimum  Liquidity Coverage                                                        |   |                   |   |       |   |         |   |   |   |
| (Outstanding  Obligations equal or greater than $500,000)                          |   | 6 months               |   |       |   | Yes          |   | No |   |
| (Outstanding  Obligations less than $500,000)                                      |   | 4 months               |   |       |   | Yes          |   | No |   |
|                                                                               |   |                   |   |       |   |         |   |   |   |
| Have there been updates  to Borrower’s intellectual property, if appropriate? |   |                   |   |       |   | Yes          |   | No |   |
|                                                                                    |        |                        |        |            |        |              |        |  |  |  |

 
| **Comments Regarding Exceptions:**  See Attached. | **BANK USE ONLY**  |
|--------------------------------------------------------|--------------------|
|                                                   |               |
| Sincerely,                                             | Received by:       |   |
|                                                   |               | AUTHORIZED SIGNER |
|                                                   |               |
|                                                   |               | Date: |   |
|                                                   |               |
|                                                   |               | Verified: |   |
| SIGNATURE                                              |               | AUTHORIZED SIGNER |
|                                                   |               |
|                                                   |               | Date: |   |
| TITLE                                                  |               |
|                                                   | Compliance Status: | Yes | No |
|                                                        |                    |  |  |  |  |  |  |  |

 

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