Exhibit 4.6
SECOND JOINDER AND AMENDMENT AGREEMENT
This Second Joinder and Amendment Agreement (this "Agreement"),
dated as of December 22, 2003, 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 purchaser
("New Investor").
WHEREAS, the Company and the New Investor have entered into that
certain Series E-1 Stock Purchase Agreement dated as of the date hereof (the
"Series E-1 Purchase Agreement"; all capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to them in the Series
E-1 Purchase Agreement) relating to the purchase and sale of shares of the
Company's Series E-1 Preferred Stock, par value $.001 per share (the "Series E
Preferred"), to the New Investor;
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 that certain Joinder and Amendment
Agreement dated as of May 27, 2003 with respect to the issuance of the Company's
Series E Preferred Stock;
WHEREAS, it is a condition to the closing of the Series E-1 Purchase
Agreement that the New Investor, as an investor in Company, and the Company,
enter into this Agreement so that the New Investor shall become a party to the
Investor Rights Agreement and the Stockholders' Agreement; 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 to add the New Investor as a party thereto, subject to the terms and
conditions of this Agreement.
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, the New Investor shall become 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-1 Preferred shall
be included within the meaning of "Registrable Securities" thereunder.
(b) The New Investor hereby agrees 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, provided that the New Investor shall not be
entitled to the inspection rights set forth in Section 2.1(b) of the Investor
Rights Agreement.
2. JOINDER TO THE STOCKHOLDERS' AGREEMENT.
(a) The parties hereby agree to that upon execution of this
Agreement, the New Investor shall become 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 New Investor hereby agrees 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.
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 the Company, the New Investor and a sufficient
number of Existing Stockholders sufficient to amend each of the Investor Rights
Agreement and the Stockholders' Agreement.
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/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[Balance of page intentionally left blank]
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AMPERSAND 1999 LIMITED PARTNERSHIP
By: AMP-99 Management Company Limited
Liability Company, its General Partner
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
Managing Member
AMPERSAND 1999 COMPANION FUND
LIMITED PARTNERSHIP
By: AMP-99 Management Company
Limited Liability Company, its
General Partner
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
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/ XXXXXXX X. XXXXX III
-------------------------------------
Xxxxxxx X. Xxxxx III
Vice President
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/ XXXXXXX X. XXXXX III
---------------------------------
Xxxxxxx X. Xxxxx III
Vice President
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ADVENT PARTNERS HLS II LIMITED
PARTNERSHIP
By: Advent International Corporation,
General Partner
By: XXXXXXX X. XXXXX III
-----------------------------------
Xxxxxxx X. Xxxxx III
Vice President
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: XXXXXXX X. XXXXX III
-------------------------------------
Xxxxxxx X. Xxxxx III
Vice President
ASCENSION HEALTH, as Fiscal Agent and
Nominee of certain of its
wholly-owned subsidiaries
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
EGS Private Healthcare Partnership, L.P.
By: /s/ XXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
EGS Private Healthcare Counterpart, L.P.
By: /s/ XXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
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EGS Private Healthcare Partnership II, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ XXXXXXXX XXXX
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Member
EGS Private Healthcare Investors II, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ XXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Member
EGS Private Healthcare Canadian Partners, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ XXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Member
EGS Private Healthcare Presidents Fund, L.P.
By: EGS Private Healthcare Associates, LLC
its General Partner
By: /s/ XXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Member
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ADVANTAGE CAPITAL MISSOURI
PARTNERS III, L.P.
By: Advantage Capital Company
MO-GP-III, L.L.C., its general
partner
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP
ADVANTAGE CAPITAL MISSOURI
PARTNERS I, L.P.
ADVANTAGE CAPITAL MISSOURI
PARTNERS II, L.P.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP
A.G.E. INVESTMENTS, INC.
By:
-------------------------------------
Name:
Title:
ALAFI CAPITAL COMPANY, LLC
By: /s/ XXXXXXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Managing Partner
XXXXXXXXXXX XXXXX, an individual
/s/ XXXXXXXXXXX XXXXX
-------------------------------------------
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Xxxxxxxxxxx Xxxxx
CID EQUITY CAPITAL V, L.P.
By: CID Equity Partners V,
Its general partner
By: /s/ XXXX X. XXXXX
---------------------------------
Xxxx X. Xxxxx, General Partner
EMERSUB XXXVIII, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Secretary
FERI TRUST GMBH
By:
-------------------------------------
Name:
Title:
BOME INVESTORS III, L.L.C.
By: GATEWAY CAPCO, L.L.C.,
its Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member
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BOME INVESTORS II, LLC
By: GATEWAY CAPCO, LLC,
its Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member
BOME INVESTORS, INC.
By: GATEWAY CAPCO, LLC,
its Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member
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GATEWAY VENTURE PARTNERS III, L.P.
By: Gateway Associates III, L.P.,
its General Partner
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member
GRAYSTONE VENTURE DIRECT EQUITY, L.P.
By: Graystone Venture Partners, LLC,
its general partner
By: /s/ XXXXXX XXXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxx
Title: Managing Director
PORTAGE FOUNDERS, L.P.
By: Portage Venture Partners,
L.L.C., its General Partner
By: /s/ XXXXXX XXXXXXX XXXXX
------------------------------------
Xxxxxx Xxxxxxx Xxxxx
Managing Director
PORTAGE VENTURE FUND, L.P.
By: Portage Venture Partners,
L.L.C., its General Partner
By: /s/ XXXXXX XXXXXXX XXXXX
------------------------------------
Xxxxxx Xxxxxxx Xxxxx
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/ XXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: General Partner
MITSUBISHI INTERNATIONAL CORPORATION
By:
-------------------------------------
Name:
Title:
MIC CAPITAL LLC
By: MC Financial Services Ltd., as
Manager
By:
---------------------------------------
Name:
Title:
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STIFEL CAPCO II, L.L.C.
By: /s/ J. XXXXXX XXXXXXXX
---------------------------------------
Name: X.X. Xxxxxxxx
Title: President
/s/ XXXX X. XXXXXXXXX
----------------------------------------
Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx III, M.D.
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PROLOG CAPITAL A, L.P.
By: Prolog Ventures A, LLC
Its General Partner
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: A Managing Director
PROLOG CAPITAL B, L.P.
By: Prolog Ventures B, LLC
Its General Partner
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: A Managing Director
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MITSUBISHI CORPORATION
By:
----------------------------------------
Name:
Title:
MAYO FOUNDATION FOR MEDICAL
EDUCATION AND RESEARCH
By:
--------------------------------
Name:
Title:
SIEMENS AKTIENGESELLSCHAFT
By:
--------------------------------
Name:
Title:
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