Exhibit 10.4


 


AMENDMENT TO SECURITIES PURCHASE AGREEMENT


 


                This Amendment to Securities
Purchase Agreement (this “Amendment”) is entered into as of March 26,
2009, by and among CLARIENT, INC., a Delaware corporation (the “Company”),
SAFEGUARD DELAWARE, INC., a Delaware corporation (“Purchaser”)


 


RECITALS


 


A.           The Company, Purchaser and
Safeguard Scientifics, Inc., a Delaware corporation, are parties to that
certain Securities Purchase Agreement, dated as of June 13, 2002 (the “Agreement”).


 


B.             Pursuant to Section 8.7
of the Agreement, the Company and Purchaser may amend the Agreement.


 


C.             The Company and Oak
Investment Partners XII Limited Partnership are concurrently entering into a
Stock Purchase Agreement dated of even date herewith (the “Stock Purchase Agreement”)
pursuant to which the Company will issue to Oak shares of the Company’s Series A
Convertible Preferred Stock (the “Series A Preferred Stock”) having
the rights, preferences and privileges set forth in the Certificate of
Designations (as defined in the Stock Purchase Agreement).


 


D.            It is a condition to the
obligations of Oak to shares of Series A Preferred Stock pursuant to the
Stock Purchase Agreement that this Amendment be entered into by the parties
hereto.


 


E.              The Company and Purchaser
desire to amend the Agreement in accordance with the terms of this Amendment.


 


                NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:


 


1.             Section 4.1(d) of the
Agreement is amended and restated to read in its entirety as follows:


 


“(d)


 


(i)            So
long as the holders of Series A Preferred Stock are entitled to elect at
least one (1) director of the Company’s Board of Directors (the “BOARD”)
pursuant to the Certificate of Designations, (A) the Company shall not
increase the number of members of the Board in excess of nine (9) members
and (B) to the extent not inconsistent with the fiduciary duties of the
Board upon the request of the Purchaser in a writing signed by Purchaser and
referencing this Section 4.1(d) (a “DESIGNATION NOTICE”), the Company
will request that the Board appoint (in the case of vacancies) or nominate for
election by the stockholders to the Board, up to three (3) nominees
designated by the Purchaser in the Designation Notice (as well as replacement
nominees for vacancies created by the death, resignation or removal of any
Director serving as a result of such a nomination),  provided that Purchaser and its Affiliates
own at least 25% of the voting power of all outstanding securities of the
Company entitling the holders thereof to vote generally in the election of
directors.  If the Purchaser and its
Affiliates own less than 25% of the voting power of all outstanding securities
of the Company entitling holders thereof to vote generally in the election of
directors, the number of nominees that Purchaser is entitled to designate
pursuant to this clause (i) shall be reduced from three (3) to two
(2).


 

















 


(ii)           From
and after such time as the rights of the Series A Preferred Stock to elect
at least one (1) director pursuant to the Certificate of Designations has
terminated, to the extent not inconsistent with the fiduciary duties of the
Board, upon the request of the Purchaser in a Designation Notice, the Company
will request that the Board appoint (in the case of vacancies) or nominate for
election by the stockholders to the Board, up to three (3) (or if more,
not less than one-third (1/3) of the number of directors on the Board) nominees
as designated by the Purchaser in the Designation Notice (as well as
replacement nominees for vacancies created by the death, resignation or removal
of any Director serving as a result of such a nomination), provided that
Purchaser and its Affiliates own at least 25% of the voting power of all
outstanding securities of the Company entitling the holders thereof to vote
generally in the election of directors. 
If the Purchaser and its Affiliates own less than 25% of the voting
power of all outstanding securities of the Company entitling holders thereof to
vote generally in the election of directors, the number of nominees that
Purchaser is entitled to designate pursuant to this clause (ii) shall be
reduced from three (3) to two (2).


 


(iii)          The
Company will reimburse the Purchaser or its nominees who are appointed or
elected to the Board who are employees of the Purchaser for all reasonable out
of pocket costs incurred by such Purchaser Directors in attending meetings of
the Board or committees thereof and in discharging their duties as directors of
the Company. The Company will compensate Purchaser Directors who are not
employees of the Purchaser on a basis comparable to the compensation
arrangements in effect for directors of Purchaser who are not Purchaser
Directors. Provided that there exists at least one Purchaser Director, the
Company will cause a Purchaser Director to be a member of each committee of the
Board except for the Related Party Transactions Committee and Audit Committee.


 


(iv)          At
such time as the Purchaser and its Affiliates own less than 16.67% of the
voting power of all outstanding securities of the Company entitling the holders
thereof to vote generally in the election of directors, the Purchaser shall
negotiate in good faith with the Company an appropriate amendment to the terms
of this Section 4.1(d) in light of such diminished ownership.


 


(v)           So
long as the holders of Series A Preferred Stock or the shares of Common
Stock issuable upon conversion of the Series A Preferred Stock are
entitled to elect at least one (1) director of the Company pursuant to the
Certificate of Designations or the Stock Purchase Agreement, this Section 4.1(d) may
not be amended without the prior written consent of the holders of a majority
of the then-outstanding shares of Series A Preferred Stock.


 


(vi)          For
the avoidance of doubt, the Purchaser agrees that during the term of this
Agreement, so long as the Company is not in breach of its obligations
hereunder, Purchaser and its Affiliates shall only designate, appoint or
otherwise specify directors in accordance with the terms hereof.


 


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(vii)         Any
transferee complying with the assignment provisions in Section 8.8 shall
be treated with all existing Purchasers as one “Purchaser” for purposes of
determining how many Purchaser Directors the Purchasers collectively are
entitled to pursuant to this Section 4.1(d) and which may be
allocated amongst themselves; provided, however, whenever any one Purchaser
(together with such Purchaser’s Affiliates) no longer holds at least five
percent (5%) of the voting power of all outstanding securities of the Company
entitling holders thereof to vote generally in the election of directors, such
Purchaser shall no longer be deemed a Purchaser hereunder for any purpose
whatsoever (including determining the number of Purchaser Directors the
Purchasers are collectively entitled to). 
In no event shall any Person other than a Purchaser hereunder have
rights under this Section 4.1(n) with respect to a Purchaser
Director.”


 


2.             A new Section 4.1(e) shall
be added to the Agreement to read in its entirety as follows:


 


“(e)         For so long as
Safeguard Scientifics accounts for its (and its Affiliates’) interests in the
Company on a consolidated or equity method of accounting basis, the Company
shall utilize the same auditing firm as Safeguard Scientifics, or such
different auditing firm proposed by the Company as to which Safeguard
Scientifics shall consent in writing.  In
addition, the Company shall cause to be prepared a closing balance sheet and
stub-period profit and loss statement on and up to the date that Safeguard
Scientifics deconsolidates its (and its Affiliates’) interests in the Company.”


 


3.             A
new Section 7.1.5 shall be added to the Agreement to read in its entirety
as follows:


 


“7.1.5      Automatic
Termination.   The Agreement shall
terminate on the date that the Purchaser and its Affiliates own less than 5% of
the voting power of all outstanding securities of the Company entitling the
holders thereof to vote generally in the election of directors.”


 


4.             Section 8.8
is amended and restated in its entirety as follows:


 


“Successors and Assigns.
Except as otherwise provided herein, this Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns. The Purchaser may not assign any or all of its rights hereunder
without the consent of the Company (whether in connection with any sale or
transfer of all or any portion of the securities of the Company held by the
Purchaser or otherwise); provided, however, (i) that the Purchaser may
assign its rights and obligations under this Agreement to any Affiliate of the
Purchaser; provided that such Affiliate executes a joinder agreement and
becomes a party to this Agreement as a Purchaser hereunder and (ii) the
board designation rights set forth in Section 4.1(d) may be assigned
without the consent of the Company in accordance with the following
sentence.  A Purchaser may formally
assign one or more of its rights to a Purchaser Director set forth in Section 4.1(d) in
connection with a sale of securities of the Company to a transferee; provided
that (i) such transferee executes a joinder agreement and becomes a party
to this Agreement as a Purchaser for purposes of Section 4.1(d), (ii) such
transferee acquires at least 9,800,000 shares of Common Stock from the
transferring Purchaser (as adjusted for any stock split, consolidation,
reorganization, merger, dissolution and the like with respect to such shares),
and (iii) a copy of the agreement allocating the right to one or more
Purchaser Directors is provided to the Company. 
The Company shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchaser, except in
connection with a transfer of its business substantially or as a whole, whether
by merger, consolidation, sale of assets or otherwise and provided that (1) the
assignee assumes in writing all obligations hereunder and (2) the Company
remains liable to the extent still existing.”


 


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5.             The
definition of “Affiliate” set forth in Annex I is amended and restated in its entirety as follows:


 


““AFFILIATE”
shall mean, at any time, (a) with respect to any Person, any other Person
that at such time directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with, such first
Person, and (b) with respect to the Company, any Person beneficially
owning or holding, directly or indirectly, 10% or more of any class of voting
or equity interests of the Company or any Subsidiary or any corporation of
which the Company and its Subsidiaries beneficially own or hold, in the
aggregate, directly or indirectly, 10% or more of any class of voting or equity
interests. As used in this definition, “CONTROL” means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.”


 


6.             A new Section 8.14 shall be
added to the Agreement to read in its entirety as follows:


 


“8.14       Definition of Purchaser.  For the avoidance of doubt, for purposes of
this Agreement the term “PURCHASER” shall mean Safeguard Delaware, Inc., a
Delaware corporation, and any permitted transferees in accordance with Section 8.8.”


 


7.             Unless
otherwise defined, all initially capitalized terms in this Amendment shall be
as defined in the Agreement.


 


8.             Except
as expressly amended hereby, all terms and provisions of the Agreement shall
remain in full force and effect.


 


9.             This
Amendment shall be governed by construed and enforced in accordance with the
laws of the State of Delaware, without regard to the conflicts of laws
provisions thereof.


 


10.           This Amendment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.


 


[Signature Page Follows]


 


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IN
WITNESS WHEREOF, the undersigned have executed this Amendment to Securities
Purchase Agreement on the date first set forth above.


 


	
   

  	
  CLARIENT,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ray Land

  
	
   

  	
   

  	
  Ray
  Land

  
	
   

  	
   

  	
  Senior
  Vice President and

  
	
   

  	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SAFEGUARD
  DELAWARE, 1NC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Sisko

  
	
   

  	
   

  	
  Brian
  Sisko

  
	
   

  	
   

  	
  Vice
  President