SECOND AMENDMENT TO REGISTRATION AGREEMENT
EXHIBIT 10.5
SECOND AMENDMENT
TO
This Second Amendment to Registration Agreement (this “Amendment”), is made and entered into effective as of March 4, 2015 (the “Effective Date”), and amends that certain Registration Agreement, dated as of January 4, 2013, by and among ECPM Holdings, LLC, a Delaware limited liability company (the “Company”), and the other parties thereto, as amended by that certain First Amendment to Registration Agreement, effective as of October 30, 2014 (the “Registration Agreement”). All capitalized terms used in this Amendment and not defined herein shall have the meanings set forth in the Registration Agreement.
RECITALS
A. The Company desires to amend the Registration Agreement in order to amend the definition of “Investor Registrable Securities”, as more specifically described herein and to add certain Other Holders.
B. The Board of Managers of the Company has approved this Amendment by unanimous written consent effective as of February 28, 2015.
C. The undersigned holders of units of membership interests of the Company collectively constitute holders of a majority of each of the Investor Registrable Securities and the Other Registrable Securities.
D. For purposes of approving the Amendment in accordance with Section 9(d) of the Registration Agreement, the undersigned hereby consent to the adoption of this Amendment and the terms and conditions contained herein.
AMENDMENTS
NOW, THEREFORE, in consideration of the mutual agreements, terms, conditions, and covenants set forth in this Amendment, the parties agree as follows:
1. Effective Date. This Amendment shall be effective as of the Effective Date.
2. Amendments.
a. Section 1(b) of the Registration Agreement is hereby amended by deleting the first sentence of Section 1(b) and replacing it with the following:
“Either (x) the Investors holding a majority of the Investor Registrable Securities held by all Investors or (y) the holders of a majority of the Investor Registrable Securities shall be entitled to request two (2) Long-Form Registrations in which the Company shall pay all Registration Expenses (“Company-paid Long-Form Registrations”); provided that the aggregate offering value of the Investor Registrable Securities requested to be registered in any Long-Form Registration is at least $10 million.”
b. The second sentence of Section 1(b) of the Registration Agreement is hereby amended by (a) inserting the phrase “or holders effecting the demand” immediately following the first reference to “Investors” and (b) inserting the phrase “or holders” immediately following the second reference to to “Investors”.
c. The definition of “Investor Registrable Securities” in Section 8(c) of the Registration Agreement is hereby amended by deleting the first sentence in its entirety and replacing it with the following:
““Investor Registrable Securities” means (i) any Common Stock issued or issuable upon the conversion of any Class A Unit (including any Class A-1 Unit) issued pursuant to any of the Class A Unit Purchase Agreements, (ii) any Common Stock issued or issuable with respect to the securities referred to in clause (i) above by way of a dividend or split of equity securities or in connection with a combination of equity securities, recapitalization, merger, consolidation or other reorganization, and (iii) any other shares of Common Stock held by Persons holding securities described in clauses (i) and (ii) above (it being acknowledged that following an IPO, any Other Registrable Securities held by Other Holders that also hold securities described in clauses (i) or (ii) above shall constitute Investor Registrable Securities).”
d. Section 8 of the Registration Agreement is hereby amended by adding a new definition for “Class A Unit Purchase Agreements” immediately following the definition of “Common Stock”, which reads as follows:
““Class A Unit Purchase Agreements” means any of (i) the Purchase Agreement, (ii) that certain Unit Purchase Agreement, dated as of October 30, 2014, among the Company and the Purchasers named therein and/or (iii) that certain Unit Purchase Agreement, dated as of March 4, 2015, among the Company and the Purchasers named therein.”
e. The Schedule of Other Holders attached to the Registration Agreement is hereby amended by adding the Other Holders listed on Schedule 1 attached hereto, and such additional Other Holders listed on Schedule 1 shall be added as parties to the Registration Agreement as Other Holders upon their execution and delivery to the Company of a joinder, in a form substantially similar to the joinder attached as Exhibit A to the Registration Agreement.
f. The Schedule of Investors attached to the Registration Agreement is hereby amended by adding the Investor listed on Schedule 2 attached hereto, and such additional Investor listed on Schedule 2 shall be added as parties to the Registration Agreement as an Investor upon its execution and delivery to the Company of a joinder, in a form substantially similar to the joinder attached as Exhibit A to the Registration Agreement.
3. Registration Agreement to Remain in Full Force and Effect. Except as specifically provided herein, the Registration Agreement, as amended by this Amendment, shall remain in full force and effect, and the provisions thereof are hereby ratified and confirmed.
4. Sufficiency of Consent. The undersigned hereby acknowledge and agree that the consent of the undersigned provided herein, together with the approval by the Board of Managers of the Company (which has been separately obtained), constitutes all the consents and approvals required to adopt this Amendment.
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5. Further Actions. The undersigned hereby agree to take such actions and to execute such documents and other instruments as may be necessary or desirable to give effect to the purposes of this Amendment. Furthermore, the undersigned hereby consent to the taking of any actions and the execution of any documents or other instruments by any officer of the Company deemed by such officer necessary or desirable to give effect to the purposes of this Amendment.
6. Governing Law. This Amendment shall be governed by the laws of the State of Delaware, without giving effect to principles of conflict of laws of that State.
7. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one instrument.
{ Signature page to follow }
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| THE COMPANY: | ||
| ECPM HOLDINGS, LLC | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Xxxx Xxxxxxxx | ||
| President | ||
Signature Page to Second Amendment to Registration Rights Agreement
| REQUISITE HOLDERS INVESTOR REGISTRABLE SECURITIES: | ||
| SC US GF V HOLDINGS, LTD. a Cayman Islands exempted company | ||
| By: | SEQUOIA CAPITAL U.S. GROWTH FUND V, L.P. | |
| SEQUOIA CAPITAL USGF PRINCIPALS FUND V, L.P. | ||
| both Cayman Islands exempted limited partnerships, its Members | ||
| By: | SCGF V MANAGEMENT, L.P., | |
| a Cayman Islands exempted limited partnership, its General Partner | ||
| By: | SC US (TTGP), LTD., | |
| a Cayman Islands exempted company, its General Partner | ||
| By: | ||
| /s/ Xxxxx Xxxxxx | ||
| Name: | Xxxxx Xxxxxx | |
| Title: | Director | |
Signature Page to Second Amendment to Registration Rights Agreement
| REQUISITE HOLDERS OTHER REGISTRABLE SECURITIES: | ||
| RIVER CITIES CAPITAL FUND IV L.P. | ||
| By: | River Cities Management IV LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxxx X. XxXxxxxx | |
| Name: | Xxxxxx X. XxXxxxxx | |
| Title: | Manager | |
| RIVER CITIES CAPITAL FUND IV (N.Q.P.) L.P. | ||
| By: | River Cities Management IV LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxxx X. XxXxxxxx | |
| Name: | Xxxxxx X. XxXxxxxx | |
| Title: | Manager | |
| COUNCIL CAPITAL II, L.P. | ||
| By: | Council Capital Partners II, LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxx | |
| Title: | Managing General Partner | |
| ENVEST III, LLC | ||
| By: | Envest Management III, LLC | |
| Its: | Managing Member | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Manager | |
Signature Page to Second Amendment to Registration Rights Agreement
| U.M. ACCELMED L.P. | ||
| By: U.M. Accelmed Management (2009) Ltd. | ||
| Its: General Partner | ||
| By: | /s/ Xxx Xxxxxx | |
| Name: | Xxx Xxxxxx | |
| Title: | Managing Partner | |
| EVERGREEN V, L.P. | ||
| By: Evergreen V GP, L.P, its general partner | ||
| By: Evergreen 5 G.P. Ltd., its general partner | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Partner | |
| EVERGREEN V-A, L.P. | ||
| By: Evergreen V GP, L.P, its general partner | ||
| By: Evergreen 5 G.P. Ltd., its general partner | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Partner | |
Signature Page to Second Amendment to Registration Rights Agreement
Schedule I
Other Holders
Deerfield Private Design Fund III, L.P.
000 Xxxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, XX 00000
F: (x0) 000-000-0000
ABG II-EndoChoice Limited
x/x XXX XX-XxxxXxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxx, PO Box 173, Road Town,
Tortola, British Virgin Islands
Rock Springs Capital Master Fund LP
c/o Rock Springs Capital
Attention: Xxxxxxxxx Xxxx and Xxxxx Apeadu
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxxxx, XX 00000
xxxx@xxxxxxxxxxxxxxxxxx.xxx
xxxxx@xxxxxxxxxxxxxxxxxx.xxx
Union Grove Partners Direct Venture Fund, LP
c/o Union Grove Partners Direct Venture Fund, LP
000 X. Xxxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Schedule 2
Investor
Sequoia Capital U.S. Growth Fund V, L.P.
c/o Sequoia Capital
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000 0000
