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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] 


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        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
	 	 	 	 	 





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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.
	 	 	 	 	 



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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:  
	 	 	 	 	 





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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:  
	 	 	 	 	 



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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
	 	 	 	 	 





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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.
	 	 	 	 	 



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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