Exhibit 4.4
JOINDER AGREEMENT
This Joinder Agreement (this "Joinder Agreement") to Series D-2 Preferred
Stock Purchase Agreement, Fourth Amended and Restated Investor Rights Agreement
and Second Amended and Restated Stockholders' Agreement referred to below, is
dated as of January 21, 2003 and is made between STEREOTAXIS, INC., a Delaware
corporation (the "Company"), and the undersigned purchasers ("New Investors").
WHEREAS, the Company and the several purchaser parties thereto
(collectively, the "Investors") have entered into that certain Series D-2
Preferred Stock Purchase Agreement dated as of December 17, 2002 (the "Purchase
Agreement"; all capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement);
WHEREAS, Section 1.2(b) of the Purchase Agreement provides that that the
Company may have Additional Closings under the Purchase Agreement;
WHEREAS, the New Investors desire to purchase shares ("Shares") of the
Company's Series D-2 Preferred Stock, par value $.001 per share, as provided
herein, at an Additional Closing as of the date of this Agreement and the Board
of Directors of the Company has approved the issuance and sale as provided in
Section 1.2(d) of the Purchase Agreement;
WHEREAS, pursuant to the Purchase Agreement, the Company, the Investors
and the Stockholders entered into that certain Fourth Amended and Restated
Investor Rights Agreement (the "Investor Rights Agreement") and that certain
Second Amended and Restated Stockholders' Agreement (the "Stockholders'
Agreement"), each dated as of December 17, 2002;
WHEREAS, each of the New Investors, as an investor in Company, is required
to become a party to the Investor Rights Agreement and the Stockholders'
Agreement pursuant to the Purchase Agreement; and
WHEREAS, the parties now desire to enter into this Joinder Agreement to
reflect the fact that the New Investors will become a party to the Purchase
Agreement, the Investor Rights Agreement and the Stockholders' Agreement.
NOW THEREFORE, in consideration of the premises and the mutual terms and
provisions set forth in this Joinder Agreement, the parties agree that the
Purchase Agreement is amended as follows:
1. JOINDER TO THE PURCHASE AGREEMENT.
(a) The parties hereby agree to that upon execution of this Joinder
Agreement, the New Investors shall become a party to the Purchase Agreement and
shall be included within the meaning of Investor thereunder.
(b) Each of the New Investors severally agrees to purchase at the
Additional Closing, and the Company agrees to sell and issue to each of the New
Investors at the Additional Closing, the number of shares of Series D-2
Preferred Stock set forth opposite such New Investor's
name in the appropriate column on the Schedule attached hereto, which shall be
added as Schedule 1.2-B to the Purchase Agreement as provided for therein, for a
purchase price per share equal to the Share Purchase Price under the Purchase
Agreement ($2.17 per Share). Each New Investor shall also be entitled to elect
to purchase Warrants as provided in Section 1(a) of the Purchase Agreement by
executing and delivering a notice of exercise form as provided in the Purchase
Agreement.
(c) The Company hereby reaffirms the representations and warranties set
forth in Article 2 of the Purchase Agreement to the New Investors, modified and
supplemented to the extent set forth in the officer's certificate delivered to
the New Investors as of the date hereof pursuant to Section 5.5(f) of the
Purchase Agreement.
(d) Each of the New Investors hereby severally agrees to be bound by the
Purchase Agreement and to be subject to all of the rights and obligations of a
Investor contained therein, including, but not limited to the right of each of
the New Investors to purchase the number of Warrants indicated in such New
Investor's Election to Purchase Warrants delivered herewith. Without limiting
the foregoing, each of the New Investors, severally but not jointly for the
other New Investors, hereby makes the representations and warranties set forth
in Section 4.1 of the Purchase Agreement to the Company as if set forth herein
in full. In addition, each New Investor shall provide an Accredited Investor
Questionnaire to the Company in the form attached to the Purchase Agreement.
2. JOINDER TO THE INVESTOR RIGHTS AGREEMENT.
(a) The parties hereby agree to that upon execution of this Joinder
Agreement, the New Investors shall become a party to the Investor Rights
Agreement and shall be included within the meaning of Holder thereunder.
(b) The New Investors hereby agree to be bound by the Investor Rights
Agreement and to be subject to all of the rights and obligations of a Holder
contained therein.
3. JOINDER TO THE STOCKHOLDERS' AGREEMENT.
(a) The parties hereby agree to that upon execution of this Joinder
Agreement, each of the New Investors shall become a party to the Stockholders'
Agreement and shall be included within the meaning of Stockholder thereunder.
(b) Each of the New Investors hereby severally agrees to be bound by the
Stockholders' Agreement and to be subject to all of the rights and obligations
of a Stockholder contained therein.
4. Except as modified by this Joinder Agreement (and the officer's
certificate referenced in Section 1(c) hereof), all other provisions of the
Purchase Agreement, the Investor Rights Agreement and the Stockholders'
Agreement remain in full force and effect. This Joinder Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law of such state.
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5. This Joinder Agreement may be executed in one or more counterparts
each of which shall be deemed an original but all of which taken together shall
constitute one and the same Joinder Agreement. This Joinder Agreement shall be
effective upon the execution and delivery by the Company and by the New
Investors.
6. For purposes of executing this Joinder Agreement, a copy (or
signature page thereto) signed and transmitted by facsimile machine or
telecopier is to be treated as an original document. The signature of any party
thereon, for purposes hereof, is to be considered as an original signature, and
the document transmitted is to be considered to have the same binding effect as
an original signature on an original document. At the request of any party, any
facsimile or telecopy document is to be re-executed in original form by the
parties who executed the facsimile or telecopy document. No party may raise the
use of a facsimile machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier machine as a defense to
the enforcement of this Joinder Agreement.
[Signature Pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this
Joinder Agreement as of the date first set forth above.
STEREOTAXIS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
EGS Private Healthcare Partnership II, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
EGS Private Healthcare Investors II, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
EGS Private Healthcare Canadian Partners, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
EGS Private Healthcare Presidents Fund, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
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SCHEDULE 1.2-B
(Closing as of January ___, 2003)
AGGREGATE SHARE
INVESTOR NAME NUMBER OF SHARES PURCHASE PRICE
------------- ---------------- ---------------
EGS Private Healthcare Partnership II, L.P. 1,745,882 $3,788,563.94
EGS Private Healthcare Investors II, L.P. 275,343 $597,494.31
EGS Private Healthcare Canadian Partners, L.P. 262,714 $570,089.38
EGS Private Healthcare Presidents Fund, L.P. 20,209 $43,853.53
TOTAL: 2,304,148 $5,000,001.16