Exhibit 4.7
THIRD JOINDER AND AMENDMENT AGREEMENT
This Third Joinder and Amendment Agreement (this "Agreement"), dated
as of January 28, 2004, to that certain Fourth Amended and Restated Investor
Rights Agreement and Second Amended and that certain Second Amended and Restated
Stockholders' Agreement referred to below, is made between Stereotaxis, Inc., a
Delaware corporation (the "Company"), and the undersigned investors.
WHEREAS, the Company and certain new and existing investors (the
"E-2 Investors") have entered into that certain Series E-2 Stock Purchase
Agreement dated as of the date hereof (the "Series E-2 Purchase Agreement"; all
capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Series E-2 Purchase Agreement) relating to the
purchase and sale of shares of the Company's Series E-2 Preferred Stock, par
value $.001 per share (the "Series E Preferred"), to the E-2 Investors;
WHEREAS, the Company and certain of its existing stockholders (the
"Existing Stockholders") are parties that certain Fourth Amended and Restated
Investor Rights Agreement, dated as of December 17, 2002 (as thereafter
supplemented and amended, the "Investor Rights Agreement"), and that certain
Second Amended and Restated Stockholders' Agreement, dated as of December 17,
2002, as supplemented by that certain Series D-1 Director Designation dated as
of January 29, 2003 (as thereafter supplemented and amended, the "Stockholders'
Agreement"), in each case as amended by (i) that certain Joinder and Amendment
Agreement dated as of May 27, 2003 and (ii) that certain Second Joinder and
Amendment Agreement dated as of December 22, 2003;
WHEREAS, it is a condition to the closing of the Series E-2 Purchase
Agreement that the Company, the E-2 Investors, and the Existing Investors
holding a sufficient number of shares to amend the Investor Rights Agreement and
the Stockholders' Agreement enter into this Agreement on the terms and
conditions set forth herein; and
WHEREAS, the Existing Stockholders have approved and consented to
the Company entering into this Agreement to effect the same, so that the
Investor Rights Agreement and the Stockholders' Agreement shall be deemed
amended as herein provided.
NOW THEREFORE, in consideration of the premises and the mutual terms
and provisions set forth in this Agreement, the parties agree as follows:
1. JOINDER TO THE INVESTOR RIGHTS AGREEMENT.
(a) The parties hereby agree to that upon execution of this
Agreement, each of the E-2 Investors shall become (or shall continue to be) a
party to the Investor Rights Agreement and shall be included within the meaning
of "Holder" thereunder. The shares of Common Stock issued upon conversion of the
Series E-2 Preferred and upon exercise of the common stock
warrants issued in connection with the Series E-2 Preferred shall be included
within the meaning of "Registrable Securities" thereunder.
(b) The E-2 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 and herein.
2. JOINDER AND AMENDMENT TO THE STOCKHOLDERS' AGREEMENT.
(a) The parties hereby agree to that upon execution of this
Agreement, each E-2 Investor shall become (or shall continue to be) a party to
the Stockholders' Agreement and shall be included within the meaning of
Stockholder thereunder; provided, however, that in connection with administering
the board observer rights in Section 4(b) of the Stockholders' Agreement, the
Company reserves the right to exclude such observer from access to any material
or meeting or portion thereof if the Company believes that such exclusion is
reasonably necessary to preserve the attorney-client privilege, to protect
confidential proprietary information, or for other similar reasons.
(b) The E-2 Investors hereby agree to be bound by the Stockholders'
Agreement and to be subject to all of the rights and obligations of a
Stockholder contained therein and herein.
(c) The Stockholders' Agreement is hereby amended to provide that
each Stockholder shall agree to take all action necessary, including, without
limitation, the voting of his, her or its shares of stock of the Company, the
execution of written consents, the calling of special meetings, the removal of
directors, the filling of vacancies on the Company's Board of Directors, the
waiving of notice and the attending of meetings, so as to cause the authorized
number Directors to be established at no fewer than ten (10) and no more than
eleven (11), with the size initially established at ten (10) Directors, and to
elect the EGS Designee, subject to the terms described below. From and after
June 30, 2004, EGS Private Healthcare Partnership II, L.P. (or one of its
affiliates) collectively and individually, "EGS"), so long as EGS holds shares
of Series D-2 Preferred Stock or Series E-2 Preferred Stock, shall have the
right to select, designate and have elected a Director (the "EGS Designee") who
shall be the additional, eleventh (11th) Director, provided such right shall
exist only if the Company has not closed a Senior Preferred Qualifying IPO on or
prior to June 30, 2004. Such person shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇, unless EGS
provides advance notice that another designee shall be so appointed. In the
event EGS is entitled to select and designate a director pursuant to this
Section 2(c), the Stockholders shall take, or cause to be taken, all action
necessary as described above to cause (i) the authorized number of Directors to
be increased from ten (10) to eleven (11) and (ii) the EGS Designee to (A) be
elected as a Director in accordance with the terms hereof, in each case within
ten (10) business days of the EGS's written request to the Company therefore and
(B) continue to serve so long as EGS owns shares of Series D-2 Preferred Stock,
Series E-2 Preferred Stock or Common Stock issued upon the conversion thereof.
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(d) In order to implement the foregoing, the parties acknowledge
that immediately prior to or concurrently herewith, the Bylaws of the Company
shall have been amended to provide that the number of Directors of the Company
shall be established at no fewer than ten (10) and no more than eleven (11)
Directors, and that the initial size of the Board shall have been set at 10 by
the stockholders of the Company, subject to Section 2(c) above. The Board of
Directors shall re-nominate each of the then-current Directors for election to
the Board at each subsequent annual meeting of stockholders unless it receives
written notice from the person or persons entitled to name a Director pursuant
to the Stockholders' Agreement prior to the mailing of any notice of annual
meeting that such Director is no longer such party's nominee.
3. Except as modified by this Agreement, all other provisions of the
Investor Rights Agreement and the Stockholders' Agreement remain in full force
and effect. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard the principles of conflicts of
law of such state.
4. This 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 agreement. This Agreement shall be effective upon
the execution and delivery by (i) the Company, (ii) the E-2 Investors, and (iii)
Existing Stockholders (including any E-2 Investors who are also Existing
Stockholders holding at least (A) fifty percent (50%) of the Voting Securities
under the Stockholders' Agreement as of the date hereof, and (B) two-thirds
(2/3) of the Registrable Securities under the Investor Rights Agreement as of
the date hereof.
5. For purposes of executing this 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 Agreement.
[Signature Pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
STEREOTAXIS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive
Officer
AMPERSAND 1999 LIMITED PARTNERSHIP
By: AMP-99 Management Company Limited
Liability Company, its General
Partner
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Member
AMPERSAND 1999 COMPANION FUND LIMITED
PARTNERSHIP
By: AMP-99 Management Company Limited
Liability Company, its General Partner
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Member
ADVENT HEALTHCARE AND LIFE SCIENCES II
LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Vice President
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ADVENT HEALTHCARE AND LIFE SCIENCES II
BETEILIGUNG GMBH & CO. KG
By: Advent International Limited
Partnership, Managing Limited Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Vice President
ADVENT PARTNERS HLS II LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Vice President
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Vice President
ASCENSION HEALTH, as Fiscal Agent and Nominee
of certain of its wholly-owned subsidiaries
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ed.D., FACHE
Chief Operating Officer and Interim CEO
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EGS Private Healthcare Partnership, L.P.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
EGS Private Healthcare Counterpart, L.P.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
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
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EGS Private Healthcare Presidents Fund, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
ADVANTAGE CAPITAL MISSOURI PARTNERS III, L.P.
By: Advantage Capital Company MO-GP-III,
L.L.C., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name:
Title:
ADVANTAGE CAPITAL MISSOURI PARTNERS I, L.P.
ADVANTAGE CAPITAL MISSOURI PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name:
Title:
A.G.E. INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
ALAFI CAPITAL COMPANY, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Partner
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CID EQUITY CAPITAL V, L.P.
By: CID Equity Partners V,
Its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
CID EQUITY CAPITAL VIII, L.P.
By: CID Equity Partners VIII,
Its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
EMERSUB XXXVIII, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
FERI WEALTH MANAGEMENT GMBH (formerly FERI
TRUST GMBH)
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ M. ULOEPPER
-----------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ Dr. M. Uloepper
Title: Partner Partner
BOME INVESTORS III, L.L.C. III
By: GATEWAY CAPCO, L.L.C.,
its Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
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BOME INVESTORS II, LLC
By: GATEWAY CAPCO, LLC,
its Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
BOME INVESTORS, INC.
By: GATEWAY CAPCO, LLC,
its Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
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GATEWAY VENTURE PARTNERS III, L.P.
By: Gateway Associates III, L.P.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
GRAYSTONE VENTURE DIRECT EQUITY, L.P.
By: Graystone Venture Partners, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
PORTAGE FOUNDERS, L.P.
By: Portage Venture Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
PORTAGE VENTURE FUND, L.P.
By: Portage Venture Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
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SANDERLING VENTURES LIMITED, L.P.
SANDERLING VENTURE PARTNERS II, L.P.
SANDERLING VENTURE PARTNERS IV CO-
INVESTMENT FUND, L.P.
SANDERLING IV BIOMEDICAL CO-INVESTMENT
FUND, L.P.
SANDERLING II LIMITED PARTNERSHIP
SANDERLING VENTURE PARTNERS V CO-INVESTMENT
FUND, L.P.
SANDERLING V BETEILIGUNGS GMBH & CO. KG
SANDERLING V LIMITED PARTNERSHIP
SANDERLING V BIOMEDICAL CO-INVESTMENT
FUND, L.P.
SANDERLING VENTURES MANAGEMENT V
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: General Partner
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ MOTOATSU SAKUROI
---------------------------------------
Name: Motoatsu Sakuroi
Title: President and CEO
MIC CAPITAL LLC
By: MC Financial Services Ltd.,
as Manager
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
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STIFEL CAPCO II, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, M.D.
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PROLOG CAPITAL A, L.P.
By: Prolog Ventures A, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Director
PROLOG CAPITAL B, L.P.
By: Prolog Ventures B, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Director
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MITSUBISHI CORPORATION
By: /s/ TSUNECHIKO YANAGIHARA
-------------------------------------------
Name: Tsunechiko Yanagihara
Title: General Manager
Life Sciences Business Unit
MAYO FOUNDATION FOR MEDICAL EDUCATION
AND RESEARCH
By:
-------------------------------------------
Name:
Title:
SIEMENS AKTIENGESELLSCHAFT
By: /s/ HAMBUECHEN
-------------------------------------------
Name: Hambuechen
Title: President
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ DEVELOPMENT CORPORATION
By:
-------------------------------------------
Name:
Title:
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SANDERLING MANAGEMENT LIMITED,
CUSTODIAN, FBO THE INVESTORS OF
SANDERLING VENTURES LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
Title:
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STIFEL FINANCIAL CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chairman, CEO
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