Joinder and Amendment

EX-4.5 9 c84511exv4w5.txt JOINDER AND AMENDMENT 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] 2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. STEREOTAXIS, INC. By: ------------------------------------- Name: Bevil J. Hogg Title: President and Chief Executive Officer SIEMENS AKTIENGESELLSCHAFT By: ----------------------------------- Name: Title: [Balance of page intentionally left blank] 3 AMPERSAND 1999 LIMITED PARTNERSHIP By: AMP-99 Management Company Limited Liability Company, its General Partner By: /s/ DAVID J. PARKER -------------------------------- David J. Parker Managing Member AMPERSAND 1999 COMPANION FUND LIMITED PARTNERSHIP By: AMP-99 Management Company Limited Liability Company, its General Partner By: /s/ DAVID J. PARKER -------------------------------- David J. Parker 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/ WILLIAM C. MILLS III --------------------------- William C. Mills 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/ WILLIAM C. MILLS III --------------------------- William C. Mills III Vice President 4 ADVENT PARTNERS HLS II LIMITED PARTNERSHIP By: Advent International Corporation, General Partner By: /s/ WILLIAM C. MILLS III -------------------------------- William C. Mills III Vice President ADVENT PARTNERS LIMITED PARTNERSHIP By: Advent International Corporation, General Partner By: /s/ WILLIAM C. MILLS III -------------------------------- William C. Mills III Vice President ASCENSION HEALTH, as Fiscal Agent and Nominee of certain of its wholly- owned subsidiaries By: /s/ DOUGLAS D. FRENCH ------------------------------------- Name: Douglas D. French Title: Chief Executive Officer EGS Private Healthcare Partnership, L.P. By: /s/ ABHIJEET LELE ------------------------------------- Name: Abhijeet Lele Title: Managing Director EGS Private Healthcare Counterpart, L.P. By: /s/ ABHIJEET LELE ------------------------------------- Name: Abhijeet Lele Title: Managing Director 5 EGS Private Healthcare Partnership II, L.P. By: EGS Private Healthcare Associates, LLC its General Partner By: /s/ ABHIJEET LELE --------------------------- Name: Abhijeet Lele Title: Managing Member EGS Private Healthcare Investors II, L.P. By: EGS Private Healthcare Associates, LLC its General Partner By: /s/ ABHIJEET LELE --------------------------- Name: Abhijeet Lele Title: Managing Member EGS Private Healthcare Canadian Partners, L.P. By: EGS Private Healthcare Associates, LLC its General Partner By: /s/ ABHIJEET LELE --------------------------- Name: Abhijeet Lele Title: Managing Member EGS Private Healthcare Presidents Fund, L.P. By: EGS Private Healthcare Associates, LLC its General Partner By: /s/ ABHIJEET LELE --------------------------- Name: Abhijeet Lele 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/ SCOTT A. ZAJAC -------------------------------- Name: Title: ADVANTAGE CAPITAL MISSOURI PARTNERS I, L.P. ADVANTAGE CAPITAL MISSOURI PARTNERS II, L.P. By: /s/ SCOTT A. ZAJAC ----------------------------------- Name: Title: A.G.E. INVESTMENTS, INC. By: /s/ DOUGLAS L. KELLY ------------------------------------- Name: Douglas L. Kelly Title: Director ALAFI CAPITAL COMPANY, LLC By: /s/ CHRISTOPHER ALAFI ------------------------------------- Name: Christopher Alafi Title: General Partner CHRISTOPHER ALAFI, an individual /s/ CHRISTOPHER ALAFI ---------------------------------------- Christopher Alafi 7 CID EQUITY CAPITAL V, L.P. By: CID Equity Partners V, Its general partner By: /s/ JOHN C. APLIN ------------------------------------- John C. Aplin, General Partner EMERSUB XXXVIII, INC. By: /s/ HARLEY M. SMITH ------------------------------------- Name: Harley M. Smith 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/ GREGORY R. JOHNSON -------------------------------- Name: Gregory R. Johnson Title: Member 8 BOME INVESTORS II, LLC By: GATEWAY CAPCO, LLC, its Attorney-in-Fact By: /s/ GREGORY R. JOHNSON -------------------------------- Name: Gregory R. Johnson Title: Member BOME INVESTORS, INC. By: GATEWAY CAPCO, LLC, its Attorney-in-Fact By: /s/ GREGORY R. JOHNSON -------------------------------- Name: Gregory R. Johnson Title: Member 9 GATEWAY VENTURE PARTNERS III, L.P. By: Gateway Associates III, L.P., its General Partner By: /s/ GREGORY R. JOHNSON -------------------------------- Name: Gregory R. Johnson Title: Member GRAYSTONE VENTURE DIRECT EQUITY, L.P. By: Graystone Venture Partners, LLC, its general partner By: /s/ JUDITH BULTMAN MEYER -------------------------------- Name: Judith Bultman Meyer Title: Managing Director PORTAGE FOUNDERS, L.P. By: Portage Venture Partners, L.L.C., its General Partner By: /s/ JUDITH BULTMAN MEYER -------------------------------- Judith Bultman Meyer Managing Director PORTAGE VENTURE FUND, L.P. By: Portage Venture Partners, L.L.C., its General Partner By: /s/ JUDITH BULTMAN MEYER -------------------------------- Judith Bultman Meyer Managing Director 10 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/ FRED A. MIDDLETON ----------------------------------- Name: Fred A. Middleton 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, McNeil & Mills Associates V, LLC By: /s/ FRED A. MIDDLETON ----------------------------------- Name: Fred A. Middleton Title: Managing Director SANDERLING VENTURE MANAGEMENT V By: /s/ FRED A. MIDDLETON ----------------------------------- Name: Fred A. Middleton 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: 11 STIFEL CAPCO II, L.L.C. By: /s/ J. JOSEPH SCHLAFLY ------------------------------------- Name: J. Joseph Schlafly Title: President and Manager /s/ FRED A. MIDDLETON ---------------------------------------- Fred A. Middleton /s/ BEVIL J. HOGG ---------------------------------------- Bevil J. Hogg /s/ RANDALL D. LEDFORD ---------------------------------------- Randall D. Ledford /s/ TIMOTHY MILLS ---------------------------------------- Timothy Mills /s/ MATTHEW A. HOWARD III ---------------------------------------- Matthew A. Howard III, M.D. 12 PROLOG CAPITAL A, L.P. By: Prolog Ventures A, LLC Its General Partner By: /s/ GREGORY R. JOHNSON ----------------------------------- Name: Gregory R. Johnson Title: A Managing Director PROLOG CAPITAL B, L.P. By: Prolog Ventures B, LLC Its General Partner By: /s/ GREGORY R. JOHNSON ----------------------------------- Name: Gregory R. Johnson Title: A Managing Director 13 MITSUBISHI CORPORATION By: ------------------------------------- Name: Title: MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH By: /s/ RICK F. COLVIN ------------------------------ Name: Rick F. Colvin Title: Assistant Treasurer 14