EXHIBIT 4.1
AMENDMENT TO
SHAREHOLDER RIGHTS
AGREEMENT
THIS AMENDMENT TO SHAREHOLDER
RIGHTS AGREEMENT (this
“Amendment” ) is entered into as of
September 8, 2009, by and between NEUROMETRIX, INC., a
Delaware corporation (the “Company” ),
and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation (the “Rights Agent”
).
WITNESSETH:
WHEREAS, the Company and the Rights Agent are parties to
that certain Shareholder Rights Agreement dated March 7, 2007
(the “Rights Agreement” ); and
WHEREAS, the Company desires to enter into Securities
Purchase Agreements with investors under which the Company will
issue and sell up to 8,816,521 shares of the common stock of the
Company and warrants to purchase up to 8,375,695 shares of common
stock of the Company in a private placement; and
WHEREAS, pursuant to Section 27 of the Rights
Agreement, the Company and the Rights Agent may from time to time
supplement or amend the Rights Agreement subject to the terms of
the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has
determined that an amendment to the Rights Agreement as set forth
herein is necessary and desirable in connection with the foregoing
and the Company and the Rights Agent desire to evidence such
amendment in writing.
NOW, THEREFORE,
in consideration of these premises
and mutual agreements set forth herein, the parties agree as
follows:
1.
Amendment of
Section 1 .
Section 1 of the Rights Agreement, “Certain
Definitions” is supplemented to add the following definitions
in the appropriate locations:
“ Investor ”
shall mean Deerfield Special Situations Fund, L.P. and Deerfield
Special Situations Fund International Limited.
“ Securities Purchase
Agreement ” shall mean the Securities Purchase Agreement,
dated September 8, 2009, by and between the Company and the
Investor that incorporates the Securities Purchase Agreement
— Standard Terms.
“ Transactions ”
shall mean the issuance of (x) 2,548,673 shares of Common
Stock, and (y) the Warrant, in each case, and the exercise of
the Warrant in accordance with its terms.
“ Warrant ” shall
mean the warrant to purchase 2,421,239 shares of Common Stock
pursuant to the Securities Purchase Agreement.
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