Exhibit 4.5 JOINDER AND AMENDMENT AGREEMENT This Joinder and Amendment Agreement (this "Agreement") is dated as of May 27, 2003, to that certain Fourth Amended and Restated Investor Rights Agreement and Second Amended and that certain Second Amended...
Exhibit 4.5
JOINDER AND AMENDMENT AGREEMENT
This Joinder and Amendment Agreement (this "Agreement") is dated as of May
27, 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 Stock Purchase Agreement dated as of the date hereof (the "Series E
Series E Purchase Agreement"; all capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to them in the Series
E Purchase Agreement) relating to the purchase and sale of shares of the
Company's Series E Preferred Stock, par value $.001 per share (the "Series E
Preferred") to the New Investor;
WHEREAS, the Company, 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 (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 (the "Stockholders' Agreement");
WHEREAS, it is a condition to the closing of the Series E Purchase
Agreement that the New Investor, as an investor in Company, and the Company,
shall 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 Agreements 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 that 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 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, 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.
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:
-------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief
Executive Officer
SIEMENS AKTIENGESELLSCHAFT
By:
-----------------------------------
Name:
Title:
[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: /s/ XXXXXXX X. XXXXX III
--------------------------------
Xxxxxxx X. Xxxxx III
Vice President
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: /s/ 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: Chief Executive Officer
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
6
ADVANTAGE CAPITAL MISSOURI PARTNERS III,
L.P.
By: Advantage Capital Company
MO-GP-III, L.L.C., its general
partner
By: /s/ XXXXX X. XXXXX
--------------------------------
Name:
Title:
ADVANTAGE CAPITAL MISSOURI PARTNERS I,
L.P.
ADVANTAGE CAPITAL MISSOURI PARTNERS II,
L.P.
By: /s/ XXXXX X. XXXXX
-----------------------------------
Name:
Title:
A.G.E. INVESTMENTS, INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
ALAFI CAPITAL COMPANY, LLC
By: /s/ XXXXXXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: General Partner
XXXXXXXXXXX XXXXX, an individual
/s/ XXXXXXXXXXX XXXXX
----------------------------------------
Xxxxxxxxxxx Xxxxx
7
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 III, 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
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: General Partner
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.
By: Middleton, XxXxxx & Xxxxx
Associates V, LLC
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
SANDERLING VENTURE MANAGEMENT V
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Owner
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ MOTOATSU SAKURAI
-------------------------------------
Name: MOTOATSU SAKURAI
Title: President & CEO
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: J. Xxxxxx Xxxxxxxx
Title: President and Manager
/s/ XXXX X. XXXXXXXXX
----------------------------------------
Xxxx X. Xxxxxxxxx
/s/ XXXXX X. XXXX
----------------------------------------
Xxxxx X. Xxxx
/s/ XXXXXXX X. XXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ XXXXXXX XXXXX
----------------------------------------
Xxxxxxx Xxxxx
/s/ XXXXXXX X. XXXXXX III
----------------------------------------
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: /s/ XXXX X. XXXXXX
------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
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