AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.6
EXECUTION COPY
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
“Amendment”) is made as of the 28th day of October, 2008 by and among MAKO
Surgical Corp., a Delaware corporation (the “Company”) and the investors of the Company
that have signed signature pages hereto (the “Investors”), being the requisite percentage
of the Series A Investors, Series B Investors and Series C Investors. Capitalized terms used
herein but not otherwise defined shall have the meaning ascribed to them in the Registration Rights
Agreement (as defined below).
WHEREAS, the Company and the Investors (as well as other investors in the Company who are not
signatories of this Amendment) are parties to that certain Second Amended and Restated Registration
Rights Agreement dated February 6, 2007 (the “Registration Rights Agreement”), pursuant to
which the Investors have certain rights with respect to the registration of Company securities;
WHEREAS, pursuant to the Registration Rights Agreement, the Company may not grant registration
rights except with the consent of the Investors, and the Company now desires to undertake a private
placement of the Company’s securities (the “Offering”) which includes a grant of
registration rights to the prospective purchasers of Company securities in the Offering; and
WHEREAS, the Company and the Investors desire that the Company complete the Offering and the
Registration Rights Agreement be amended to permit the Company to grant certain registration rights
in relation to the Offering;
NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
| 1. | Section 1.1.3 (Reduction) of the Registration Rights Agreement is hereby amended by adding
the following at the end of the section: |
“If any securities issued pursuant to the 2008 SPA (as hereinafter defined) and any
Registrable Securities (together, the “Combined Registrable Securities”) are
included in any single registration statement, whether filed pursuant to this
Section 1.1, the 2008 SPA or otherwise, and the aggregate number of the Combined
Registrable Securities that are sought to be registered thereon must be reduced in
order that such registration not be deemed a primary offering of securities by the
Company, then the Company shall reduce the number of Combined Registrable Securities
included in such registration statement in accordance with Section 6.1(g) of the
2008 SPA.”
| 2. | The Registration Rights Agreement is further amended by modifying Section 1.2.2 (Reduction)
by adding the following at the end of the section: |
“If pursuant to Section 1.2.1 any Registrable Securities are included in a
registration statement required to be filed under the 2008 SPA and the Combined
Registrable Securities must be reduced in order that such registration not be deemed
a primary offering of securities by the Company, then the Company shall reduce the
number of Combined Registrable Securities included in such registration statement in
accordance with Section 6.1(g) of the 2008 SPA.”
| 3. | The Registration Rights Agreement is further amended hereby by deleting, in the first
sentence of Section 1.5, the words “provided, further, that such thirty (30)-day
periods shall be separated by at least seven (7) calendar days.” |
|
| 4. | The Registration Rights Agreement is further amended by deleting the first clause of the
first sentence of Section 1.7 (Grant and Transfer of Registration Rights) which states: |
“Except for the registration rights granted by the Company after the date hereof (a)
pursuant to any registration(s) effected on Form S-4 under the Act (or any successor
form) with respect to Equity Securities issued or issuable in connection with any
Board-approved business combination transaction(s), or (b) which are otherwise
subordinate in all respects to the rights of the Investors hereunder,”
and replacing it with the following: |
“Except for registration rights granted by the Company after the date hereof (a)
pursuant to the terms of that certain Securities Purchase Agreement, dated on or
about October 28, 2008 by and between the Company and the purchasers named therein
(as amended, restated or otherwise modified from time to time, the “2008
SPA”), (b) pursuant to any registration(s) effected on Form S-4 under the Act
(or any successor form) with respect to Equity Securities issued or issuable in
connection with any Board-approved business combination transaction(s), or (c) which
are otherwise subordinate in all respects to the rights of the Investors hereunder,”
| 5. | The Registration Rights Agreement is further amended by modifying the definition of
Registrable Securities contained in Article II thereof by deleting clause (y) of the
definition and replacing it with the following: |
"(y) as to each Investor, such Investor’s shares of Common Stock and other Equity
Securities as herein described shall cease to be Registrable Securities at such time
as all of the same are eligible for sale in accordance with Rule 144(b)(1), or any
successor or substantially similar provision, promulgated under the Act.”
| 6. | Other than the foregoing amendments, the Registration Rights Agreement is hereby ratified and
confirmed in all respects. |
|
| 7. | This Amendment may be executed in two (2) or more counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same instrument. |
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[Signature Page to Amendment No. 1 to Second Amended and
Restated Registration Rights Agreement]
Restated Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Second Amended and
Restated Registration Rights Agreement as of the date first written above.
| MAKO SURGICAL CORP. |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
Address: 0000 Xxxxx Xxxx |
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| Xxxx Xxxxxxxxxx, XX 00000 | ||||
[Investors Signatures on Following Pages]
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[Signature Page to Amendment No. 1 to Second Amended and
Restated Registration Rights Agreement]
Restated Registration Rights Agreement]
| INVESTORS: MK INVESTMENT COMPANY |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Director Address: Zonamerica de Montevideo, Xxxx 0 XX 00.0, Xxxxxxxx X0/X0, Xxxxxxxxxx - Xxxxxxx |
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| XXXXXXX MEDITECH EQUITY PARTNERS LP |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Administrative Officer Address: 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
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| MEDITECH ADVISORS LLC |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Partner Address: 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
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| APERTURE CAPITAL II, L.P. |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Member of its GP Address: 000 Xxxxxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 |
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[Signature Page to Amendment No. 1 to Second Amended and
Restated Registration Rights Agreement]
Restated Registration Rights Agreement]
| LUMIRA CAPITAL I LIMITED PARTNERSHIP |
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| By: | /s/ Graysanne Xxxxxx | |||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Name: | Graysanne Xxxxxx Xxxxxxx Xxxxxxxx |
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| Title: | VP and Secretary Chief Financial Officer of its GP Address: 00 Xxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxxxx X0X 0X0 |
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| LUMIRA CAPITAL I QUEBEC LIMITED PARTNERSHIP |
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| By: | /s/ Graysanne Xxxxxx | |||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Name: | Graysanne Xxxxxx Xxxxxxx Xxxxxxxx |
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| Title: | VP and Secretary Chief Financial Officer of its GP Address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, Xxxxxx X0X 0X0 |
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| MLII CO-INVESTMENT FUND NC LIMITED PARTNERSHIP |
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| By: | /s/ Graysanne Xxxxxx | |||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Name: | Graysanne Xxxxxx Xxxxxxx Xxxxxxxx |
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| Title: | VP and Secretary Chief Financial Officer of its GP Address: 00 Xxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxxxx X0X 0X0 |
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| MMF HOLDINGS LLC |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx, M.D. | |||
| Title: | Address: 0000 Xxxxxxxxx Xxxxxx Xxxxx, XX 00000 |
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[Signature Page to Amendment No. 1 to Second Amended and
Restated Registration Rights Agreement]
Restated Registration Rights Agreement]
| /s/ Xxxxxxx X. Xxxxx | ||||
| XXXXXXX X. XXXXX, M.D. | ||||
| Address: 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxx, XX 00000 |
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| /s/ Xxxxxxxx X. Xxxx | ||||
| XXXXXXXX X. XXXX, M.D. | ||||
| Address: c/x Xxxxxx Medical, Inc. 000 X. Xxxxxxxxxxx Xx. Xxxxxxxxxxxx, XX 00000 |
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| /s/ Xxxxxxxxxxx X. Xxxxx | ||||
| XXXXXXXXXXX X. XXXXX | ||||
| Address: Box 23 000 Xxxxxxxxx Xx., Xxxxxxx, XX 00000 |
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