3rd Joinder and Agreement

EX-4.7 11 c84511exv4w7.txt 3RD JOINDER AND AGREEMENT Exhibit 4.7 THIRD JOINDER AND AMENDMENT AGREEMENT This Third Joinder and Amendment Agreement (this "Agreement"), dated as of January 28, 2004, 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 investors. WHEREAS, the Company and certain new and existing investors (the "E-2 Investors") have entered into that certain Series E-2 Stock Purchase Agreement dated as of the date hereof (the "Series E-2 Purchase Agreement"; all capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Series E-2 Purchase Agreement) relating to the purchase and sale of shares of the Company's Series E-2 Preferred Stock, par value $.001 per share (the "Series E Preferred"), to the E-2 Investors; WHEREAS, the Company and 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 (as thereafter supplemented and amended, 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 (as thereafter supplemented and amended, the "Stockholders' Agreement"), in each case as amended by (i) that certain Joinder and Amendment Agreement dated as of May 27, 2003 and (ii) that certain Second Joinder and Amendment Agreement dated as of December 22, 2003; WHEREAS, it is a condition to the closing of the Series E-2 Purchase Agreement that the Company, the E-2 Investors, and the Existing Investors holding a sufficient number of shares to amend the Investor Rights Agreement and the Stockholders' Agreement enter into this Agreement on the terms and conditions set forth herein; and WHEREAS, the Existing Stockholders have approved and consented to the Company entering into this Agreement to effect the same, so that the Investor Rights Agreement and the Stockholders' Agreement shall be deemed amended as herein provided. NOW THEREFORE, in consideration of the premises and the mutual terms and provisions set forth in this Agreement, the parties agree as follows: 1. JOINDER TO THE INVESTOR RIGHTS AGREEMENT. (a) The parties hereby agree to that upon execution of this Agreement, each of the E-2 Investors shall become (or shall continue to be) 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-2 Preferred and upon exercise of the common stock warrants issued in connection with the Series E-2 Preferred shall be included within the meaning of "Registrable Securities" thereunder. (b) The E-2 Investors hereby agree to be bound by the Investor Rights Agreement and to be subject to all of the rights and obligations of a Holder contained therein and herein. 2. JOINDER AND AMENDMENT TO THE STOCKHOLDERS' AGREEMENT. (a) The parties hereby agree to that upon execution of this Agreement, each E-2 Investor shall become (or shall continue to be) 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 E-2 Investors hereby agree to be bound by the Stockholders' Agreement and to be subject to all of the rights and obligations of a Stockholder contained therein and herein. (c) The Stockholders' Agreement is hereby amended to provide that each Stockholder shall agree to take all action necessary, including, without limitation, the voting of his, her or its 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 Directors to be established at no fewer than ten (10) and no more than eleven (11), with the size initially established at ten (10) Directors, and to elect the EGS Designee, subject to the terms described below. From and after June 30, 2004, EGS Private Healthcare Partnership II, L.P. (or one of its affiliates) collectively and individually, "EGS"), so long as EGS holds shares of Series D-2 Preferred Stock or Series E-2 Preferred Stock, shall have the right to select, designate and have elected a Director (the "EGS Designee") who shall be the additional, eleventh (11th) Director, provided such right shall exist only if the Company has not closed a Senior Preferred Qualifying IPO on or prior to June 30, 2004. Such person shall initially be Abhijeet Lele, unless EGS provides advance notice that another designee shall be so appointed. In the event EGS is entitled to select and designate a director pursuant to this Section 2(c), the Stockholders shall take, or cause to be taken, all action necessary as described above to cause (i) the authorized number of Directors to be increased from ten (10) to eleven (11) and (ii) the EGS Designee to (A) be elected as a Director in accordance with the terms hereof, in each case within ten (10) business days of the EGS's written request to the Company therefore and (B) continue to serve so long as EGS owns shares of Series D-2 Preferred Stock, Series E-2 Preferred Stock or Common Stock issued upon the conversion thereof. 2 (d) In order to implement the foregoing, the parties acknowledge that immediately prior to or concurrently herewith, the Bylaws of the Company shall have been amended to provide that the number of Directors of the Company shall be established at no fewer than ten (10) and no more than eleven (11) Directors, and that the initial size of the Board shall have been set at 10 by the stockholders of the Company, subject to Section 2(c) above. The Board of Directors shall re-nominate each of the then-current Directors for election to the Board at each subsequent annual meeting of stockholders unless it receives written notice from the person or persons entitled to name a Director pursuant to the Stockholders' Agreement prior to the mailing of any notice of annual meeting that such Director is no longer such party's nominee. 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 (i) the Company, (ii) the E-2 Investors, and (iii) Existing Stockholders (including any E-2 Investors who are also Existing Stockholders holding at least (A) fifty percent (50%) of the Voting Securities under the Stockholders' Agreement as of the date hereof, and (B) two-thirds (2/3) of the Registrable Securities under the Investor Rights Agreement as of the date hereof. 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] 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. STEREOTAXIS, INC. By: /s/ BEVIL J. HOGG ------------------------------------------ Name: Bevil J. Hogg Title: President and Chief Executive Officer AMPERSAND 1999 LIMITED PARTNERSHIP By: AMP-99 Management Company Limited Liability Company, its General Partner By: --------------------------------------- David J. Parker Managing Member AMPERSAND 1999 COMPANION FUND LIMITED PARTNERSHIP By: AMP-99 Management Company Limited Liability Company, its General Partner By: --------------------------------------- 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 4 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 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/ ANTHONY R. TERSIGNI ----------------------------------------- Anthony R. Tersigni, Ed.D., FACHE Chief Operating Officer and Interim CEO 5 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 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 6 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 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/ CHRIS ALAFI ----------------------------------------- Name: Chris Alafi Title: Managing Partner 7 CHRISTOPHER ALAFI, an individual /s/ CHRISTOPHER ALAFI ---------------------------------------------- Christopher Alafi CID EQUITY CAPITAL V, L.P. By: CID Equity Partners V, Its general partner By: /s/ JOHN C. ALPLIN ----------------------------------------- John C. Aplin, General Partner CID EQUITY CAPITAL VIII, L.P. By: CID Equity Partners VIII, Its general partner By: /s/ JOHN C. ALPLIN ----------------------------------------- John C. Aplin, General Partner EMERSUB XXXVIII, INC. By: /s/ HARLEY M. SMITH ----------------------------------------- Name: Harley M. Smith Title: Vice President and Secretary FERI WEALTH MANAGEMENT GMBH (formerly FERI TRUST GMBH) By: /s/ M. STAMMLER /s/ M. ULOEPPER ----------------------------------------- Name: M. Stammler Dr. M. Uloepper Title: Partner Partner BOME INVESTORS III, L.L.C. III By: GATEWAY CAPCO, 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 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: /s/ FRED A. MIDDLETON --------------------------------------- Name: Fred A. Middleton Title: General Partner MITSUBISHI INTERNATIONAL CORPORATION By: /s/ MOTOATSU SAKUROI --------------------------------------- Name: Motoatsu Sakuroi Title: President and CEO MIC CAPITAL LLC By: MC Financial Services Ltd., as Manager By: /s/ T. ISHIKAWA --------------------------------------- Name: T. Ishikawa Title: President and CEO 11 STIFEL CAPCO II, L.L.C. By: /s/ RONALD KRUSZEWSKI ------------------------------------------- Name: Ronald Kruszewski Title: Manager /s/ FRED A. MIDDLETON ------------------------------------------- Fred A. Middleton ------------------------------------------- Bevil J. Hogg /s/ RANDALL D. LEDFORD ------------------------------------------- Randall D. Ledford ------------------------------------------- Timothy Mills ------------------------------------------- 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: /s/ TSUNECHIKO YANAGIHARA ------------------------------------------- Name: Tsunechiko Yanagihara Title: General Manager Life Sciences Business Unit MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH By: ------------------------------------------- Name: Title: SIEMENS AKTIENGESELLSCHAFT By: /s/ HAMBUECHEN ------------------------------------------- Name: Hambuechen Title: President JOHNSON & JOHNSON DEVELOPMENT CORPORATION By: ------------------------------------------- Name: Title: 14 SANDERLING MANAGEMENT LIMITED, CUSTODIAN, FBO THE INVESTORS OF SANDERLING VENTURES LIMITED By: /s/ FRED A. MIDDLETON ------------------------------------------- Name: Title: MIDDLETON-MCNEIL L.P. By: /s/ FRED A. MIDDLETON ------------------------------------------- Name: Title: 15 STIFEL FINANCIAL CORP. By: /s/ RONALD KRUSZEWSKI ------------------------------------------- Name: Ronald Kruszewski Title: Chairman, CEO 16