GLOBUS MEDICAL, INC. FIRST AMENDMENT TO VOTING AGREEMENT
Exhibit 10.3
GLOBUS MEDICAL, INC.
FIRST AMENDMENT TO
VOTING AGREEMENT
This First Amendment to Voting Agreement (this Amendment), dated as of the 4th day of April 2011, is entered into by and among Globus Medical, Inc., a Delaware corporation (the Company), the undersigned holders of shares of the Companys Series E Preferred Stock, and the undersigned holders of shares of the Companys Common Stock, all of whom are party to that certain Voting Agreement (the Voting 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 Voting Agreement.
WHEREAS, the Company desires to increase the size of its Board of Directors from five to seven; and
WHEREAS, in connection therewith, the undersigned desire to amend the Voting Agreement to establish the rights of the holders of the various classes of the Companys capital stock with respect to the election of directors; and
WHEREAS, Section 3.6(a) of the Voting Agreement provides that the Voting Agreement may be amended only with the written consent of (i) the Company, (ii) holders of sixty percent (60%) of the then outstanding Series E Stock, voting as a separate class on an as-converted basis, and (iii) the holders of a majority of the then outstanding shares of Common Stock held by Key Common Holders;
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 Voting Agreement and agree as follows:
1. Amendment of Voting Agreement. The Stock Sale Agreement is hereby amended by deleting Section 1.3(b) thereof in its entirety and amending and restating such Section 1.3(b) as follows:
(b) For so long as holders of the Companys Class A Common Stock and Class B Common Stock are entitled under the Certificate of Incorporation, voting as a separate class, to elect five (5) members of the Board (the Common Directors), the Common Directors shall be five (5) individuals nominated by holders of a majority of the then outstanding Key Common Holder Shares. Any vote or action by written consent taken to remove any director elected pursuant to this Section 1.3(b), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.3(b), shall also be subject to the provisions of this Section 1.3(b). The Series E Directors and Common Directors are collectively referred to herein as Designated Directors.
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 Voting Agreement. Except as specifically, provided herein, the Voting 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, the Investors or the Key Common Holders under the Voting 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.]
First Amendment to Voting Agreement | 2 |
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
COMPANY:
GLOBUS MEDICAL, INC.
By: | /s/ David C. Paul | |
David C. Paul | ||
Chief Executive Officer |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting 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/ Robert W. Liptak | |
Robert W. Liptak Managing Director | ||
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
INVESTOR:
GS DIRECT, L.L.C.
By: | /s/ Gerald J. Cardinale | |
Name: | Gerald J. Cardinale | |
Title: | Vice President |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
INVESTOR:
GOLDMAN SACHS INVESTMENT PARTNERS MASTER
FUND, L.P.
By: Goldman Sachs Investment Partners GP, LLC,
its General Partner
By: | /s/ Gaurav Bhandari | |
Name: | Caurav Bhandari | |
Title: | Managing Director |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
INVESTOR:
GOLDMAN SACHS PRIVATE EQUITY CONCENTRATED
HEALTHCARE FUND OFFSHORE HOLDINGS, L.P.
By: | Goldman Sachs Private Equity Concentrated Healthcare Offshore Holdings Advisors, Inc., General Partner |
By: | /s/ Jonathan Snider | |
Name: | Jonathan Snider | |
Title: | Vice President |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
INVESTORS:
GOLDMAN SACHS PRIVATE EQUITY PARTNERS 2004, L.P. | GOLDMAN SACHS PRIVATE EQUITY PARTNERS 2004 EMPLOYEE FUND, L.P. | |||||||
By: Goldman Sachs PEP 2004 Advisors, L.L.C., General Partner | By: Goldman Sachs PEP 2004 Employee Funds GP, L.L.C., General Partner | |||||||
By: GSAM Gen-Par, L.L.C., Managing Member | ||||||||
By: | /s/ Jonathan Snider | |||||||
By: | /s/ Jonathan Snider | Print Name: | Jonathan Snider | |||||
Print Name: | Jonathan Snider | Title: | Vice President | |||||
Title: | Vice President | |||||||
GOLDMAN SACHS PRIVATE EQUITY PARTNERS 2004 OFFSHORE HOLDINGS, L.P. | GS PRIVATE EQUITY PARTNERS 2002 - DIRECT INVESTMENT FUND, L.P. | |||||||
By: Goldman Sachs PEP 2004 Offshore Holdings Advisors, Inc., General Partner | By: GS PEP 2002 Direct Investment Advisors, L.L.C., General Partner | |||||||
By: GSAM Gen-Par, L.L.C., Managing Member | ||||||||
By: | /s/ Jonathan Snider | |||||||
Print Name: | Jonathan Snider | By: | /s/ Jonathan Snider | |||||
Title: | Vice President | Print Name: | Jonathan Snider | |||||
Title: | Vice President | |||||||
GOLDMAN SACHS PRIVATE EQUITY PARTNERS 2004 - DIRECT INVESTMENT FUND, L.P. | MULTI-STRATEGY HOLDINGS, L.P.
By: Multi-Strategy Holdings Offshore Advisors, Inc., General Partner | |||||||
By: Goldman Sachs PEP 2004 Direct Investment Advisors, L.L.C., General Partner | ||||||||
By: GSAM Gen-Par, L.L.C., Managing Member | By: | /s/ Jonathan Snider | ||||||
Print Name: | Jonathan Snider | |||||||
By: | /s/ Jonathan Snider | Title: | Vice President | |||||
Print Name: | Jonathan Snider | |||||||
Title: | Vice President |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
INVESTORS:
/s/ Troy Fukumoto |
Troy Fukumoto |
WESTERN NATIONAL LIFE INSURANCE COMPANY
By: | /s/ Troy Fukumoto | |
Name: | Troy Fukumoto | |
Title: | Vice President |
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By: | /s/ Troy Fukumoto | |
Name: | Troy Fukumoto | |
Title: | Vice President |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ David Paul |
David Paul |
/s/ Sonali Paul |
Sonali Paul |
David C. Paul, as Trustee of the David C. Paul
2010 Grantor Retained Annuity Trust U/A 4/6/10
By: | /s/ David C. Paul | |
David C. Paul, Trustee |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ David Davidar |
David Davidar |
/s/ Sarah G. Davidar |
Sarah G. Davidar |
David D. Davidar, as Trustee of the Davidar
2009 Grantor Retained Annuity Trust U/A 8/6/09
By: | /s/ David D. Davidar | |
David D. Davidar, Trustee |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ David M. Demski |
David M. Demski |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ Daniel S. Paul |
Daniel S. Paul |
/s/ Preetha Paul |
Preetha Paul |
Daniel Paul 2010 Grantor Retained Annuity
Trust U/A 7/20/2010
By: | /s/ Daniel S. Paul | |
Daniel S. Paul, Trustee |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ Michael L. Boyer II |
Michael L. Boyer II |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ Kevin Carouge |
Kevin Carouge |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ Andrew Iott |
Andrew Iott |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ William S. Rhoda |
William S. Rhoda |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
/s/ A. Brett Murphy |
A. Brett Murphy |
First Amendment to Voting Agreement
The foregoing First Amendment to Voting Agreement is hereby executed as of the date first above written.
KEY COMMON HOLDERS:
KM MEDICAL, INC.
By: | /s/ Karen M. Tovey | |
Name: | Karen M. Tovey | |
Title: | President |
KAREN M. TOVEY GRANTOR RETAINED ANNUITY TRUST
DATED NOVEMBER 19, 2007
By: | /s/ Karen M. Tovey | |
Karen M. Tovey, Trustee | ||
/s/ Karen M. Tovey | ||
Karen M. Tovey |
First Amendment to Voting Agreement