FIFTH SUPPLEMENT AND AMENDMENT TO THE SERIES D PREFERRED SHARE PURCHASE AGREEMENT DATED JUNE 26, 2014
Exhibit 4.7
FIFTH SUPPLEMENT AND AMENDMENT
TO THE SERIES D PREFERRED SHARE PURCHASE AGREEMENT
DATED JUNE 26, 2014
THIS FIFTH SUPPLEMENT AND AMENDMENT (the “Supplement”) is made as of December 30, 2015, by and between InSightec Ltd., a private limited company organized and existing under the laws of Israel (the “Company”), York Global Finance II S.à ▇.▇., a limited liability company organized under the laws of Luxemburg (“York”), Shanghai GEOC Hengtong Investment Limited Partnership, a limited liability partnership organized under the laws of the People’s Republic of China (“GEOC”), Fortune China Limited, a company incorporated under the laws of the British Virgin Islands (“Fortune China”), Meditech Advisors LLC, a limited liability company organized under the laws of Delaware (“MTA”), MRF Family Holdings, LLLP, a limited liability limited partnership organized and existing under the laws of Florida (“MRF”), ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”), ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”), ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”), CIH- InSightec Ltd. series, a series of Cranley Investment Holdings, LLC a limited liability company organized under the laws of Delaware (“CIH”), Primatec Holdings S.A., a company organized under the laws of Panama (“Primatec”), Focused Holdings LP, a limited liability partnership organized and existing under the laws of Delaware or any of its affiliates (“Focused”), ▇▇▇▇▇▇▇▇ Holdings II S.A. (“▇▇▇▇▇▇▇▇”), ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”), ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”), ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”), Skyview Investments LLC, a limited liability company organized under the laws of Delaware (”Skyview”) and Focused Holding Canada Ltd., a limited liability company organized under the laws of Canada (”Focused Canada”) (each of York, GEOC, Fortune China, MTA, MRF, Platt, Langone, CIH, Primatec, Focused, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Chamorro, Raskosky, Skyview and Focused Canada shall be referred to as a “Purchaser” or “Party”, and together the “Purchasers” or the “Parties”).
| WHEREAS | the Company and certain Purchasers are parties to that certain Series D Preferred Share Purchase Agreement, dated June 26, 2014, as previously amended on September 7, 2014, December 15, 2014, February 10, 2015, and June 10, 2015 (the “Agreement”); |
| WHEREAS | the Company wishes to raise equity financing from certain Purchasers and additional investors, in an aggregate amount of US$22,000,000 by way of issuance of additional Series D Preferred Shares on substantially the same terms as those in the Agreement; and |
| WHEREAS | each of York, MTA, MRF, Platt, Langone, CIH, Primatec, Focused, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Chamorro, Raskosky, Skyview and Focused Canada (the “Additional Purchasers”) wish to invest in the Company in consideration for Series D Preferred Shares to be issued by the Company, subject to the terms and conditions set forth below. |
NOW IT IS HEREBY AGREED as follows:
| 1. | Interpretation and Preamble |
1.1. The preamble of this Supplement shall be an integral part thereof.
1.2. In this Supplement, unless specified otherwise, all terms shall have the meaning ascribed to them in the Agreement.
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| 2. | Amendments to the Agreement |
2.1. The Company and the Additional Purchasers agree that the Additional Purchasers shall invest an aggregate amount of $22,000,000 in the Company (the “Additional Investment”), in consideration for the issuance by the Company of 11,342,261 Series D Preferred Shares (the “Additional Purchased Shares”), at the Series D Purchase Price. Schedule 1 to this Supplementsets forth the Additional Investment of each Additional Purchaser.
2.2. The Additional Investment is made under the terms, covenants and provisions of the Agreement and the Additional Purchasers hereby agree to such terms, covenants and provisions. All of the Additional Purchased Shares shall be subject to all of the rights, obligations, and restrictions of the Shares described in the Agreement and the Company's Articles, including, without limitation, the provisions of Section 2.4 of the Agreement related to the Issuance of Additional Shares in the Event of Valuation Adjustment. The Additional Purchasers acknowledge and agree that upon execution and delivery of this Supplement, each Additional Purchaser shall be deemed a “Purchaser” and the Additional Purchased Shares shall be deemed “Shares”, for all purposes of the Agreement.
2.3. Additional Investment Closing.
Subject to the satisfaction or waiver of the conditions set forth in the Agreement and in this Supplement, the purchase and sale of the Additional Purchased Shares shall take place remotely via the exchange of documents and signatures, at such time and place as the Company and the Additional Purchaser mutually agree upon orally or in writing and in no event later than December 31, 2015 (“Additional Investment Closing“).
2.4. The Additional Investment Closing shall be subject to the condition to Closing set forth in the Agreement, subject to the following amendments:
(a) Representations, Warranties and Covenants. The representations and warranties contained in Section 5 of the Agreement shall be true and correct at and as of the Closing as though then made.
(b) Amendment of the Articles of Association and Memorandum of Association. The Company shall have made all corporate proceedings required in connection with the adoptions of amendments to the Articles and to the Memorandum of Association substantially in the form set forth in Exhibit 2.5(b) attached hereto (“New Articles”).
(c) Amendment of the Securityholders Agreement. The Company and the Securityholders shall have duly amended the Eighth Amended and Restated Securityholders Agreement, dated September 12, 2014, substantially in the form set forth in Exhibit 2.5(c) attached hereto.
(d) Board of Directors. On or before the Additional Investment Closing, a person designated by Focused (“Focused Designated Director”) shall have been duly appointed to serve on the Board of Directors pursuant to Article 23.4(d) of the new Articles.
(e) Insurance and Indemnification Letter for Focused Designated Director. The Company shall execute and deliver an indemnification letter (in the same form executed and delivered to all of the Company's existing directors) to the Focused Designated Director and the Company shall include such new director within the coverage of its directors' and officers' insurance policy.
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| 3. | Miscellaneous |
3.1. All notices and communications to be given or made under the Agreement shall be in writing and in accordance with the terms of the Agreement. Notices to ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Chamorro and Raskosky shall be sent at the following addresses:
If to ▇▇▇▇▇▇▇▇ Holdings II S.A.:
▇▇▇▇▇▇▇▇ Holdings II S.A.
Edificio Centro Magna Corp
Piso 5to. # 502-A
Avenida ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Calle ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Panamá, República de Panamá
Email: ▇▇▇@▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
If to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
El Mango #4
Comarca Santo ▇▇▇▇▇▇▇
Managua Nicaragua
Telephone: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Telephone: + ▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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If to Skyview Investments LLC:
Skyview Investments LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to Focused Holding Canada Ltd.:
Focused Holdings Canada Limited
▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇
3.2. This Supplement may be executed by one or more of the parties to this Supplement on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Supplement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Supplement.
3.3. Except as provided herein, all terms and conditions of the Agreement shall remain unchanged. In the event of any contradiction between the provisions of this Supplement and the Agreement, the provisions of this Supplement shall prevail.
[Signature page to follow]
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IN WITNESS WHEREOF, the Parties hereto have caused this Supplement to the Agreement to be duly executed and delivered as of the date first written above.
On behalf of Company:
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ |
|
Insightec Ltd. Name: ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ Title: CEO and CFO |
On behalf of GEOC:
| /s/ ▇▇▇▇▇▇▇ ▇▇▇ |
|
Shanghai GEOC Hengtong Investment Limited Partnership
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Legal Representative |
On behalf of Fortune China:
| /s/ Zhu Hepeng |
|
Fortune China Limited Name: Zhu Hepeng Title: Director |
On behalf of York:
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
York Global Finance II S.à ▇.▇. Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Manager |
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On behalf of MTA:
| /s/ ▇▇▇▇▇▇ Cubal |
|
Meditech Advisors LLC Name: ▇▇▇▇▇▇ Cubal Title: MNC Director |
On behalf of MRF:
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
|
MRF Family Holdings, LLLP
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President |
On behalf of ▇▇▇▇▇:
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
On behalf of Langone:
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
On behalf of ▇▇▇▇▇▇▇:
| /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
On behalf of CIH :
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ |
|
CIH- InSightec Ltd. series, a series of Cranley Investment Holdings, LLC Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ Title: Manager |
On behalf of Primatec:
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
Primatec Holdings S.A. Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: President |
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On behalf of Focused:
| /s/ |
|
Focused Holding LP
Name: _____________
Title: Member, GP |
On behalf of ▇▇▇▇▇▇▇▇ :
| /s/ |
|
▇▇▇▇▇▇▇▇ Holdings II S.A.
Name: ▇▇▇▇▇▇▇▇▇ Lang
Title: Director |
On behalf of ▇▇▇▇▇:
| /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
|
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
On behalf of Chamorro:
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
On behalf of Raskosky:
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
On behalf of Skyview:
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
Skyview Investments LLC
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member |
On behalf of Focused Canada:
| /s/ ▇▇▇ ▇▇▇▇▇▇▇ |
|
Focused Holding Canada Ltd.
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: V.P |
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Schedule 1
ADDITIONAL PURCHASERS & ADDITIONAL INVESTMENT
| Purchasers | Additional Investment (US$) | No. of Purchased Preferred D Shares | ||||||
| York Global Finance II S.à ▇.▇. | $ | 2,750,000 | 1,417,783 | |||||
| MRF Family Holdings, LLLP | $ | 114,584 | 59,075 | |||||
| Meditech Advisors LLC | $ | 266,951 | 137,629 | |||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | $ | 859,375 | 443,057 | |||||
| ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | $ | 6,875 | 3,544 | |||||
| Focused Holdings LP | $ | 6,364,262 | 3,281,142 | |||||
| ▇▇▇▇▇▇▇▇ Holdings II S.A | $ | 687,500 | 354,446 | |||||
| Primatec Holdings S.A. | $ | 343,750 | 177,223 | |||||
| CIH - InSightec Ltd. Series, a Series of Cranley Investment Holdings LLC | $ | 343,750 | 177,223 | |||||
| ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | $ | 1,375,000 | 708,891 | |||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | $ | 68,750 | 35,445 | |||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | $ | 687,500 | 354,446 | |||||
| Skyview Investments LLC | $ | 859,375 | 443,057 | |||||
| Focused Holding Canada Ltd. | $ | 7,272,328 | 3,749,302 | |||||
| Total | $ | 22,000,000 | 11,342,261 | |||||