GLOBUS MEDICAL, INC. FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT
Exhibit 4.5
GLOBUS MEDICAL, INC.
FIRST AMENDMENT TO
This First Amendment to Investor Rights Agreement (this “Amendment”), dated as of the 14th day of January 2009, is entered into by and among Globus Medical, Inc., a Delaware corporation (the “Company”), and the undersigned holders of shares of the Company’s Series E Preferred Stock, all of whom are party to that certain Investor Rights Agreement (the “Rights Agreement”) dated as of July 23, 2007, by and among the Company and certain of its stockholders. Capitalized terms used herein that are not otherwise defined herein shall have the meanings given them in the Rights Agreement.
WHEREAS, the Company desires to authorize a new class of Common Stock designed “Class C Common Stock” and to establish the Globus Medical, Inc. 2008 Stock Plan and reserve 10,000,000 shares of Class C Common Stock for issuance thereunder; and
WHEREAS, in connection therewith, the undersigned desire to make certain modifications and amendments to the Rights Agreement; and
WHEREAS, Section 5.5 of the Rights Agreement provides that the Rights Agreement may be amended only with the written consent of the Company and the holders of at least sixty percent (60%) of the then-outstanding Registrable Securities (as defined in the Rights Agreement), and the undersigned constitute the requisite signatories necessary to amend the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants, conditions and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby amend the Rights Agreement and agree as follows:
1. Amendment of Rights Agreement. The Rights Agreement is hereby amended as follows:
1.1 Section 4.6(a) of the Rights Agreement is hereby deleted in its entirety and amended and restated as follows:
“(a) Up to an aggregate of 32,313,284 shares of Common Stock (including shares of Common Stock underlying options, warrants or other stock purchase rights) issued or to be issued after the Original Issue Date (as defined in the Certificate of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors including the Series E Directors;”
1.2 Section 4.6(d) of the Rights Agreement is hereby deleted in its entirety and amended and restated as follows:
“(d) shares of Common Stock issued upon conversion of shares of the Company’s Series E Stock or upon conversion of shares of any other class of Common Stock;”
2. Counterparts; Facsimile Signatures. This Amendment may be executed in any number of counterparts, each of which shall constitute an original, but which, when taken together, shall constitute by one instrument. One or more counterparts of this Amendment or any exhibit hereto may be delivered via facsimile, with the intention that they shall have the same effect as an original counterpart hereof.
3. Effect on Rights Agreement. Except as specifically, provided herein, the Rights Agreement shall remain in full force and effect. Except as specifically provided above, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Company or the Investors under the Rights Agreement.
4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws provisions thereof.
[Signature page follows.]
2
The foregoing First Amendment to Investor Rights Agreement is hereby executed as of the date first above written.
| COMPANY: | ||
| GLOBUS MEDICAL, INC. | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Xxxxx X. Xxxx | ||
| Chief Executive Officer | ||
The foregoing First Amendment to Investor Rights Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||
| CLARUS LIFESCIENCES I, L.P. | ||
| By its General Partner, Clarus Ventures I GP, LP | ||
| By its General Partner, Clarus Ventures I, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | ||
| Managing Director | ||
The foregoing First Amendment to Investor Rights Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||||
| XXXXXXX SACHS INVESTMENT PARTNERS MASTER FUND LP | ||||
| BY: XXXXXXX XXXXX INVESTMENT PARTNERS GP, LLC, ITS GENERAL PARTNER | ||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Print Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
The foregoing First Amendment to Investor Rights Agreement is hereby executed as of the date first above written.
| INVESTOR: | ||
| GS DIRECT, L.L.C. | ||
| BY: | /s/ Xxxxxxxxx X. Xxxxxxx | |
| NAME: | Xxxxxxxxx X. Xxxxxxx | |
| TITLE: | Managing Director | |
The foregoing First Amendment to Investor Rights Agreement is hereby executed as of the date first above written.
| INVESTORS: | ||||||||||||
| XXXXXXX SACHS PRIVATE EQUITY | XXXXXXX XXXXX PRIVATE EQUITY | |||||||||||
| PARTNERS 2004, L.P. | PARTNERS 2004 EMPLOYEE FUND, L.P. | |||||||||||
| By: Xxxxxxx Sachs PEP 2004 Advisors, L.L.C., | By: Xxxxxxx Xxxxx PEP 2004 Employee Funds | |||||||||||
| General Partner | GP, L.L.C., General Partner | |||||||||||
| By: GSAM Gen-Par, L.L.C., Managing Member | ||||||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||||||
| By: | /s/ Xxxx Xxxxxxx |
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| Print Name: | Xxxx Xxxxxxx | |||||||||||
| Print Name: | Xxxx Xxxxxxx |
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| Title: | Vice President | |||||||||||
| Title: | Vice President |
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| GS PRIVATE EQUITY PARTNERS 2002 – | ||||||||||||
| XXXXXXX SACHS PRIVATE EQUITY | DIRECT INVESTMENT FUND, L.P. | |||||||||||
| PARTNERS 2004 OFFSHORE HOLDINGS, | ||||||||||||
| L.P. | By: GS PEP 2002 Direct Investment Advisors, | |||||||||||
| L.L.C., General Partner | ||||||||||||
| By: Xxxxxxx Xxxxx PEP 2004 Offshore Holdings | By: GSAM Gen-Par, L.L.C., Managing Member | |||||||||||
| Advisors, Inc., General Partner | ||||||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||||||
| By: | /s/ Xxxx Xxxxxxx |
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| Print Name: | Xxxx Xxxxxxx | |||||||||||
| Print Name: | Xxxx Xxxxxxx |
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| Title: | Vice President | |||||||||||
| Title: | Vice President |
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| MULTI-STRATEGY HOLDINGS, X.X. | ||||||||||||
| XXXXXXX SACHS PRIVATE EQUITY | ||||||||||||
| PARTNERS 2004 - DIRECT INVESTMENT | ||||||||||||
| FUND, L.P. | By: Multi-Strategy Holdings Offshore Advisors, | |||||||||||
| Inc., General Partner | ||||||||||||
| By: Xxxxxxx Xxxxx PEP 2004 Direct Investment | ||||||||||||
| Advisors, L.L.C., General Partner | By: | /s/ Xxxx Xxxxxxx | ||||||||||
| By: GSAM Gen-Par, L.L.C., Managing Member | ||||||||||||
| Print Name: | Xxxx Xxxxxxx | |||||||||||
| By: | /s/ Xxxx Xxxxxxx |
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| Title: | Vice President | |||||||||||
| Print Name: | Xxxx Xxxxxxx |
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| Title: | Vice President |
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