Exhibit 4.2
SECOND AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
This Second Amended and Restated Stockholders' Agreement (this
"Agreement") is entered into as of the 17th day of December, 2002, by and among
Stereotaxis, Inc., a Delaware corporation (the "Company"), persons under the
Existing Stockholders' Agreement (as defined below) holding at least 50% of the
Voting Securities (as such term is defined in the Existing Stockholders'
Agreement), and the Series D-2 Preferred Holders (as defined below) (hereinafter
sometimes referred to individually as a "Stockholder" and collectively as the
"Stockholders"). Stockholders that own the Company's Series A Preferred Stock
are referred to herein as the "Series A Preferred Holders"; Stockholders that
own the Company's Series B Preferred Stock are referred to herein as the "Series
B Preferred Holders"; Stockholders that own the Company's Series C Preferred
Stock are referred to herein as the "Series C Preferred Holders"; Stockholders
that own the Company's Series D Preferred Stock are referred to herein as the
"Series D Preferred Holders"; Stockholders that own the Company's Series D-1
Preferred Stock are referred to herein as the "Series D-1 Preferred Holders";
Stockholders that own (or that have agreed to purchase) the Company's Series D-2
Preferred Stock are referred to herein as the "Series D-2 Preferred Holders."
WHEREAS, the Series D-2 Preferred Holders have agreed to purchase certain
shares of the Company's Series D-2 Preferred Stock (together with the underlying
shares of the Company's common stock issued upon conversion of such shares, the
"Series D-2 Preferred Stock") pursuant to that certain Series D-2 Preferred
Stock Purchase Agreement dated of even date herewith (the "Purchase Agreement")
provided that the parties hereto enter into this Agreement.
WHEREAS, the Company, the Series A Preferred Holders, the Series B
Preferred Holders, the Series C Preferred Holders, the Series D Preferred
Holders and the Series D-1 Holders have previously entered into that certain
Amended and Restated Stockholders' Agreement dated as of November 21, 2001 (the
"Existing Stockholders' Agreement").
WHEREAS, in order to induce the Series D-2 Preferred Holders to purchase
the Series D-2 Preferred Stock, the Company and the Stockholders deem it
desirable to enter into this Stockholders' Agreement, which shall supersede the
Existing Stockholders' Agreement and shall amend and restate certain obligations
of the parties to such agreement as provided for herein.
1. Supersedes. Upon the execution and delivery hereof by holders of not
less than 50% of the Voting Securities under the Existing Stockholders'
Agreement, this Agreement shall supersede and replace such Existing
Stockholders' Agreement.
2. Election of Directors. (a) Each Stockholder agrees to take all
action necessary, including, without limitation, the voting of their shares of
stock of the Company, the execution of written consents, the calling of special
meetings, the removal of directors, the filling of vacancies on the Company's
Board of Directors, the waiving of notice and the attending of meetings, so as
to cause the authorized number of directors on the Board of Directors of the
Company to be
established at ten (10) directors (each a "Director" and collectively, the
"Directors"), and consisting of the following individuals:
(i) one (1) director who has been selected by the holders of a
majority of the Series A Preferred Stock (the "Series A Director");
(ii) one (1) director who has been selected by the holders of a
majority of the Series B Preferred Stock (the "Series B Director");
(iii) one (1) director who has been selected by Gateway Venture
Partners III, L.P. so long as it owns shares of Series B Preferred or common
stock issued upon conversion thereof (the "Gateway Director");
(iv) one (1) director who has been selected by CID so long as it
owns shares of Series C Preferred or common stock issued upon conversion thereof
(the "CID Director");
(v) one (1) director who has been selected by Advent International
Corporation or a designee of Advent so long as it owns shares of Series D
Preferred or common stock issued upon conversion thereof (the "Advent
Director");
(vi) one (1) director who has been selected by Ampersand Ventures
so long as it owns shares of Series D Preferred or common stock issued upon
conversion thereof (the "Ampersand Director");
(vii) one (1) director who has been selected by the holders of a
majority of the Series D-1 Preferred Stock (the "Series D-1 Director");
(viii) the Company's Chief Executive Officer; and
(ix) two individuals designated jointly by the foregoing directors;
provided, however, that in the event the Company issues and sells not fewer than
an aggregate of 9,200,000 shares of its Series D-2 Preferred, then one of such
two individuals shall be selected by the holders of a majority of the Series D-2
Preferred Stock (such individual, the "Series D-2 Director").
(b) At the time of this Agreement, the Series A Director is Xxxx
Xxxxxxxxx, the Series B Director is Xxxxxxx X. Xxxxxxx, the Gateway Director is
Xxxxxxx X. Xxxxxxx, the CID Director is Xxxx X. Xxxxx, the Advent Director is
Xxxxxxx X. Xxxxx III, the Ampersand Director is Xxxxx X. Xxxxxx, the Series D-1
Director is Xxxxxxxxxxx Xxxxx, the director who is the Company's Chief Executive
Officer is Xxxxx X. Xxxx, and the other two directors are Xxxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx. Subject to Section 3, each director shall have the option to
be appointed to any committees of the Board of Directors, whether now existing
or hereinafter created, on an equal basis as each other member of the Board of
Directors and otherwise consistent with the fiduciary duties of the members of
the Board of Directors.
3. Committees of the Board. The Company shall take such actions as are
reasonably necessary to cause, and the Stockholders shall cause their
director-designees to vote in favor of,
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the appointment of the Ampersand Director as a member of the Company's
Compensation Committee and the appointment of the Advent Director as a member of
the Company's Audit Committee.
4. Meetings of the Board of Directors; Director Expenses;
Indemnification.
(a) The Company agrees to furnish to each Director written notice of
and an agenda prior to each regularly scheduled meeting of the Board of
Directors or any committee thereof. The Company shall provide each Director with
a copy of all notices, agendas, and minutes of all meetings of the Board of
Directors, including reports given to or prepared by the Board of Directors or
any committee thereof. The Company shall pay all reasonable travel expenses of
each Director related to attending meetings of the Board of Directors or
committees thereof. The Board of Directors shall meet at least once every three
months.
(b) Advent and Ampersand, and each Stockholder owning at least 300,000
shares of the Company's Voting Securities, shall have the right, from time to
time, to designate one of their representatives to attend any meeting of the
Board of Directors as an observer and at the expense of such Stockholder, upon
reasonable advance notice to the Company. As used herein, "Voting Securities"
shall mean the Company's: (i) Common Stock, $.001 par value; and (ii) Series A,
Series B, Series C, Series D Series D-1 and/or Series D-2 Preferred Stock, $.001
par value, and any other security of the Company entitled to vote on the
election of board of directors of the Company pursuant to the Company's
Certificate of Incorporation or Delaware law.
(c) The Company shall indemnify each Director to the fullest extent
permitted by law and shall enter into indemnification agreements with each
Director reasonably acceptable to the Company and the Directors with respect
thereto.
5. Representations and Warranties. Each Stockholder represents
and warrants to the other Stockholders, and the Company represents to the
Stockholders, the following with respect to himself, herself or itself, as
the case may be:
(a) Authorization. The Company and each Stockholder has the right
and legal capacity to execute, deliver and perform his, her or its obligations
under this Agreement. This Agreement is a legal, valid and binding obligation of
the Company and each such Stockholder, enforceable against the Company and such
Stockholder in accordance with its terms.
(b) No Violation. The execution and delivery of this Agreement
will not (with or without notice or passage of time or both) (i) conflict with
or result in a breach of any provision of the certificate of incorporation or
bylaws (or similar governing documents) of the Company or the Stockholder (if an
entity), (ii) result in a default, give rise to any right of termination,
cancellation or acceleration, or require any consent or approval, under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
loan, factoring arrangement, license, agreement, lease or other instrument or
obligation to which the Company or each such Stockholder is a party or by which
it or any of its assets may be bound (other than the Existing Stockholders'
Agreement (which agreement is being superseded hereby)) or (iii)
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violate any law, judgment, order, writ, injunction, decree, statute, rule or
regulation of any court, administrative agency, bureau, board, commission,
office, authority, department or other governmental entity applicable to the
Company or such Stockholder or any of its assets.
6. Term. This Agreement shall terminate and be of no further force or
effect upon the earliest to occur of (a) the closing of a public offering of
shares of the Company's capital stock pursuant to a registration statement filed
by the Company under the Securities Act of 1933, as amended, which has become
effective thereunder (other than a registration statement relating solely to
employee benefit plans or a transaction covered by Rule 145 of the Securities
and Exchange Commission), (b) the time that the Company becomes required to file
reports with the Securities and Exchange Commission under Sections 12(g) or
15(d) of the Securities Exchange Act of 1934, as amended, or (c) upon any change
in control of the Company as set forth in the following sentence. A "change of
control" of the Company shall be deemed to occur upon (i) any consolidation or
merger of the Company with or into any other corporation or other entity or
person, or any other corporate reorganization in which the Company shall not be
the continuing or surviving entity of such consolidation, merger or
reorganization or any transaction or series of related transactions by the
Company in which in excess of 50% of the Company's voting securities are
transferred, or (ii) a sale, lease, license or other disposition of all or
substantially all of the assets of the Company.
7. Consent to Amendments; Waivers. Any term of this Agreement may be
modified, amended or waived only upon the written agreement of the Company, and
Stockholders holding at least fifty percent (50%) of the Voting Securities held
by the Stockholders at the time of such amendment or waiver. In addition, any
modification, amendment or waiver which adversely affects any class of Voting
Securities (including, without limitation, any modification, amendment or waiver
of the provisions of Section 2 hereof adversely affecting such class of Voting
Securities), or the specific rights of Gateway, CID, Advent or Ampersand as set
forth herein, requires the written Agreement of 50% of the holders of the
adversely affected class or Gateway, CID, Advent or Ampersand, as the case may
be. Any waiver, permit, consent or approval of any kind or character on the part
of any such Stockholder of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent specifically set
forth in such writing.
8. Legend. The Corporation will stamp or imprint each certificate or
other instrument representing Voting Securities, throughout the term of this
Agreement, with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF A STOCKHOLDERS' AGREEMENT, AS AMENDED OR RESTATED FROM TIME
TO TIME, BETWEEN THE HOLDER AND THE CORPORATION, A COPY OF WHICH MAY
BE OBTAINED FROM THE SECRETARY OF THE CORPORATION."
9. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware without regard to its choice of law
provisions.
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10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
12. Notices. Any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid, addressed to the Company at Stereotaxis, Inc., 0000
Xxxxxx Xxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, with a copy to Xxxxx X. Xxxxx,
Xx., Esq., Xxxxx Xxxx LLP, One Metropolitan Square, 000 X. Xxxxxxxx, Xxx. 0000,
Xx. Xxxxx, Xxxxxxxx, 00000, and if to any Stockholder, at the respective
addresses set forth in the stock records of the Company, or at such other
address as any party may designate by 10 days' advance written notice to the
other party.
13. Benefit of Parties; Assignability. All of the terms and provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective personal representatives, heirs, successors and
assigns, including without limitation all subsequent holders of securities who
become bound by the terms of this Agreement; provided, however, that neither the
Company nor any Stockholder may delegate its responsibilities or assign or
transfer its rights or obligations under this Agreement without the prior
written consent of Advent and Ampersand.
14. Cooperation. The parties agree that after execution of this
Agreement they will from time to time, upon the request of any other party and
without further consideration, execute, acknowledge, and deliver in proper form
any further instruments and take such other action as any other party may
reasonably require to carry out effectively the intent of this Agreement.
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders' Agreement as of the date first above written.
STEREOTAXIS, INC.
By: /s/ XXXXX X. XXXX
-----------------------------------------
Xxxxx X. Xxxx, President
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
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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
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
EGS PRIVATE HEALTHCARE PARTNERSHIP, L.P.
By: /s/ XXXXXXXX XXXX
-----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
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EGS PRIVATE HEALTHCARE COUNTERPART, L.P.
By: /s/ XXXXXXXX XXXX
-----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
ADVANTAGE CAPITAL MISSOURI PARTNERS III, L.P.
By: Advantage Capital Company MO-GP-III,
L.L.C., its general partner
By: /s/ XXXXX XXXXX
-----------------------------------------
Name:
Title:
ADVANTAGE CAPITAL MISSOURI PARTNERS I, L.P.
ADVANTAGE CAPITAL MISSOURI PARTNERS II, L.P.
By: /s/ XXXXX 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/ XXXXX XXXXX
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Partner
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XXXXXXXXXXX XXXXX, an individual
/s/ XXXXXXXXXXX XXXXX
-----------------------------------------
Xxxxxxxxxxx Xxxxx
ASCENSION HEALTH, as Fiscal Agent and
Nominee of certain of its wholly-owned
subsidiaries
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
EMERSUB XXXVIII, INC.
By: /s/ XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Secretary
FERI TRUST GMBH
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Partner
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
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
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxx
Managing Director
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PORTAGE FOUNDERS, L.P.
By: Portage Venture Partners,
L.L.C., its General Partner
By:
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxx
Managing Director
PORTAGE VENTURE FUND, L.P.
By: Portage Venture Partners,
L.L.C., its General Partner
By:
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxx
Managing Director
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
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.
SANDERLING VENTURES MANAGEMENT V
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: General Partner
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/s/ XXXX X. XXXXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxxxx
/s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. XxXxxx
/s/ XXXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxxx X. Xxxxxx
CID EQUITY CAPITAL V, L.P.
By: CID Equity Partners V,
Its general partner
By: /s/ XXXX X. XXXXX
-----------------------------------------
Xxxx X. Xxxxx, General Partner
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ MOTOATSU SAKURAI
-----------------------------------------
Name: Motoatsu Sakurai
Title: Executive Vice President & COO
MIC CAPITAL LLC
By: MC Financial Services Ltd., as Manager
By: /s/ XXXXXXXX XXXXX
-----------------------------------------
Name: XXXXXXXX XXXXX
Title: President
STIFEL CAPCO II, L.L.C.
By: /s/ J. XXXXXX XXXXXXXX
-----------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: President
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XXXXX X. XXXXXX AND XXXXXX X. XXXXXX,
JOINT TENANTS WITH RIGHT OF
SURVIVORSHIP
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
XXXXX X. XXXXXXXX AND XXXXX X.
XXXXXXXX, JOINT TENANTS WITH RIGHT OF
SURVIVORSHIP
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
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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: /s/ XXXXXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: General Manager
Technology & Business Development
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